Lam v Minister for Immigration & Multicultural Affairs - [2000] FCA 1226

FEDERAL COURT OF AUSTRALIA
Lam v Minister for Immigration & Multicultural Affairs [2000] FCA 1226
MIGRATION – judicial review of a decision of the Minister under s 501A(2) of the Migration Act 1958 (Cth) to refuse to grant the applicant a Class 812 Transitional (Permanent) Visa – delegate of the Minister had earlier decided to refuse to grant the visa under s 501 on the ground that the applicant, who had been convicted and sentenced to nine years and four months imprisonment for possession of heroin, was not a person of good character and therefore could not satisfy criterion 4001 of the Migration (1993) Regulations – the Administrative Appeals Tribunal ultimately set aside that decision, substituted a finding that the applicant did meet the requirements of criterion 4001 and remitted the matter to the delegate for consideration of the remaining criteria for the grant of the visa – the Minister then exercised his power under s 501A(2) to refuse to grant the visa on the ground that the Minister suspected that the applicant did not pass the character test in s 501 and the applicant had not satisfied the Minister that he did, and because the refusal of the visa was in the national interest – whether the Minister lacked jurisdiction to make the decision under s 501A – whether it could be said that the Tribunal had made a decision, within the meaning of s 501A(1)(c), “to grant a visa to a person as a result of not exercising the power conferred by subsection 501(1) to refuse to grant a visa to the person” – whether a literal construction of s 501A(1)(c) would produce a result that is absurd and at odds with the apparent object of the provision – whether the words would bear an alternative construction which would give effect to the apparent object of the provision
Migration Act 1958 (Cth), s 476(1)(b) and (c), s 501, s 501A
Migration (1993) Regulations, Sch 2 Item 812.736(1), Sch 4 criterion 4001
Administrative Appeals Tribunal Act 1975 (Cth), s 43(1)
Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32, considered
Department of Social Security v Ridley (1992) 40 FCR 43, referred to
Occidental Life Insurance Company of Australia Ltd v Life Style Planners Pty Ltd (1992) 38 FCR 444, referred to
Minister of State for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565, referred to
Daher v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 107, referred to
Connections 2000 Pty Ltd and Minister for Immigration and Multicultural Affairs [1999] AATA 357, considered
Ross and Minister for Immigration and Multicultural Affairs [1999] AATA 965, considered
Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513, referred to
Tutugri v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 592, referred to
KWONG LEUNG LAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 710 OF 2000
LEHANE J
1 SEPTEMBER 2000
SYDNEY

IN THE…

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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Details

Case: [2000] FCA 1226
Decision Date: 1 SEPTEMBER 2000

CaseChat Overview and Summary

Lam v Minister for Immigration & Multicultural Affairs involved a Chinese national who entered Australia illegally in 1985, later marrying a Vietnamese citizen and starting a family. His application for a Transitional (Permanent) Visa was subject to public interest criteria, which were satisfied by the Administrative Appeals Tribunal. The Minister, however, had the power to review this decision under the amended Migration Act, specifically section 501A, to determine if the applicant passed the character test. The central issue was whether the applicant was entitled to relief despite his criminal history and the provisions allowing the Minister to reconsider the grant of a visa.

The court needed to determine if the statutory provisions allowing the Minister to review and potentially set aside the Tribunal's decision were consistent with the principles of natural justice. This involved examining whether the Minister's power under section 501A of the Migration Act was exercised in a manner that adhered to the principles of natural justice, particularly given the significant consequences for the applicant. The court had to consider the definition of the character test and whether the applicant's past criminal conduct and other factors justified a refusal of the visa.

The court concluded that the statutory provisions did not contravene the principles of natural justice. The Minister's power to review and set aside the decision to grant a visa, if the Minister reasonably suspected that the applicant did not pass the character test and the applicant could not satisfy the Minister to the contrary, was exercised in accordance with the law. The court found that the Minister had acted within their authority and that the decision-making process was fair and just. Consequently, the court ruled that the applicant was not entitled to relief.

The court ordered that the question of whether the applicant was entitled to relief on the ground stated in his application be answered in the negative. The matter was to be listed for further directions on 5 September 2000.

Orders

Orders of the court

1. The question, ordered to be decided separately, be answered “no”.

2. The matter be listed for further directions at 9.30 am on 5 September 2000.

Background

Background to the litigation

Accordingly, I ordered that the following question be decided separately and before any further trial in the proceedings: “Is the applicant entitled to relief on the ground stated in par 1 of his amended application?” These reasons are concerned with that question.FACTS AND STATUTORY PROVISIONS The relevant facts are not controversial. They are taken substantially from reasons given by Mathews J, as President of the Administrative Appeals Tribunal, on 3 February 1999. I shall mention, later, the place of that decision in the history. The applicant is a Chinese national, born in the Peoples Republic of China on 21 September 1959. He had little schooling. He entered Hong Kong illegally in 1979 but later became entitled to remain there. In December 1985, he stowed away on a ship bound from Hong Kong to Australia. On 20 January 1986, the day on which he arrived in Sydney, he was issued with a temporary entry permit expiring on the same day. He remained in Australia illegally and obtained employment at a Chinese restaurant in Sydney. On 12 April 1988, he married Ms My Y Lu, then a Vietnamese citizen residing in Australia. The marriage ceremony was a traditional Chinese one; it was followed on 8 September 1990 by a ceremony which rendered the marriage formally valid under Australian law. A son was born on 20 November 1988 and daughter on 31 October 1998. In 1989, the police discovered a large quantity of heroin hidden in the roof of the applicant’s house. He pleaded guilty in the District Court of New South Wales to a charge of possessing a prohibited import and was sentenced to a minimum term of seven years, dating from 11 May 1989, with an additional term of two years and four months. He was an exemplary prisoner. His wife maintained close contact with him by visits and telephone calls. The son accompanied Ms Lu when she was able to visit the applicant. During the last few months of his sentence, the applicant was allowed to go home on day release for one day each week. Upon his release in May 1996, he returned to live with his wife and son in Lakemba. Since his release the applicant has worked as a cook, earning $250 per week. Mathews J found that his relationship with his wife and son is close. The applicant had not reoffended since his release. On 20 December 1993, the applicant applied for a December 1989 (Permanent) Entry Permit. By virtue of the Migration Reform Act 1992 (Cth) the application was, after 1 September 1994, to be treated as an application for a Transitional (Permanent) Visa. Among the criteria to be satisfied at the time of the decision on his application was that the applicant “satisfies public interest criteria 4001 …” (Migration (1993) Regulations, Sch 2 Item 812.736(1)). Those criteria were set out in Sch 4 to the Migration (1993) Regulations, as follows:“4001.(1) The applicant meets the requirements of subclause (2), (3) or (4).(2)An applicant meets the requirements of this subclause if, after appropriate enquiries, the Minister has decided that there is no evidence of anything that might justify the refusal, under section 180A of the Act, to grant the visa or entry permit.(3)An applicant meets the requirements of this subclause if, after appropriate enquiries and consideration of all available evidence of anything that might justify the refusal, under section 180A of the Act, to grant the visa or entry permit, the Minister has decided that that evidence is insufficient to satisfy the Minister of any of the matters referred to in paragraph (1)(b) and subsection (2) of that section.(4)An applicant meets the requirements of this subclause if, despite being satisfied that the refusal, under section 180A of the Act, to grant the visa or entry permit is justified, the Minister has decided not to exercise the power under that section to refuse to grant the visa or entry permit.”Section 180A of the Migration Act was renumbered as s 501 by the Migration Legislation Amendment Act 1994 (Cth).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

LEHANE J

The matter was then referred to the Minister for consideration under s 501A of the Migration Act. That provision was introduced by s 3 of, and item 23 of Sch 1 to, the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth). Subsections (1) and (2) provide:“501A (1) This section applies if:(a) a delegate of the Minister; or(b) the Administrative Appeals Tribunal;makes a decision (the original decision):(c)to grant a visa to a person as a result of not exercising the power conferred by subsection 501(1) to refuse to grant a visa to the person; or(d)not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person.Action by Minister – natural justice applies(2) The Minister may set aside the original decision and(a) refuse to grant a visa to the person; or(b) cancel a visa that has been granted to the person;if:(c)the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and(d)the person does not satisfy the Minister that the person passes the character test; and(e)the Minister is satisfied that the refusal or cancellation is in the national interest.” Subsection (5) requires the power under s 501A(2) to be exercised by the Minister personally. The transitional provisions – particularly item 33 of Sch 1 – of the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act have the result that s 501A applies in relation to a decision made under s 501 as in force before that Act came into effect. The “character test” referred to in s 501A is, however, to be found in s 501 as amended. It is similar to, but in some respects more rigorous than, the test previously to be applied under s 501(1) and s 501(2). It is as follows:“(6)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)); 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.Substantial criminal record(7)For the purposes of the character test, a person has a substantial criminal record if:(a)the person has been sentenced to death; or(b)the person has been sentenced to imprisonment for life; or(c)the person has been sentenced to a term of imprisonment of 12 months or more; or(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.”Succeeding subsections further refine the definition, but not in ways that matter for present purposes.

Ratio Decidendi

Legal Principle Established

Established by: LEHANE J

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