Lu v Minister for Immigration and Multicultural and Indigenous Affairs

Case [2004] FCAFC 340

FEDERAL COURT OF AUSTRALIA

Lu v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCAFC 340

MIGRATION – character test – decision of Minister under Migration Act 1958 (Cth) s 501A(2) to set aside non-adverse decision of the Administrative Appeals Tribunal – substantial criminal record – cancellation of visa in national interest – departmental issues paper before Minister – misstatement in issues paper of appellant’s criminal record – relevant considerations – whether failure to consider accurate statement of appellant’s criminal record constituted jurisdictional error – whether errors so insignificant as could not materially have affected the decision

ADMINISTRATIVE LAW – relevant considerations – test stated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 – jurisdictional error

Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) s 501A(2)(b)
Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth) sch 1

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied
Craig v South Australia (1995) 184 CLR 163 cited
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 cited
Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93 cited
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 applied
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 cited
Stead v State Government Insurance Commission (1986) 161 CLR 141 cited
Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541 cited
Wu v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 23 cited
Naidu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 184 cited
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to
Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514 cited
Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 211 ALR 126 considered
R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] 1 QB 227 referred to
Hanks v Minister of Housing and Local Government [1963] 1 QB 999 referred to
Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 139 distinguished
Singh v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 453 referred to

M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action (3rd ed, 2004)

HO SONG LU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
VID 662 of 2004

BLACK CJ, SACKVILLE and SUNDBERG JJ
24 DECEMBER 2004
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 662 of 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

HO SONG LU
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGES:

BLACK CJ, SACKVILLE and SUNDBERG JJ

DATE OF ORDER:

24 DECEMBER 2004

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

  1. The appeal be allowed.
  2. The orders of the primary Judge made…

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AGLC
Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340
Case
[2004] FCAFC 340
Decision Date

CaseChat Overview and Summary

In the case of Lu v Minister for Immigration and Multicultural and Indigenous Affairs, the appellant, Mr. Lu, contested the decision of the Minister for Immigration and Multicultural and Indigenous Affairs to cancel his visa on character grounds. The primary dispute involved the application of the correct legal test for assessing the appellant's character, specifically whether the Minister applied the old or new character test when reviewing a decision of the Administrative Appeals Tribunal (AAT). The Federal Court of Australia was tasked with determining the validity of the Minister's decision and the correct interpretation of the transitional provisions in the Migration Act 1958.

The central legal issues the court had to resolve were whether the Minister applied the correct legal test in reviewing the AAT's decision and whether the transitional provisions of the Migration Act 1958 mandated the application of the old character test in such circumstances. The appellant argued that the Minister should have applied the same old character test as the AAT, as required by the transitional provisions, whereas the Minister applied the new character test. The court needed to ascertain whether this discrepancy constituted a jurisdictional error.

The court considered the principles set forth by Mason J in Peko-Wallsend and the decision in Ex parte Aala, which informed the understanding of jurisdictional error and the appropriate exercise of judicial review. The court concluded that the Minister's failure to apply the correct character test was indeed a jurisdictional error. The court further determined that the transitional provisions did require the Minister to apply the old character test in reviewing the AAT's decision. As a result, the Minister's decision to cancel the appellant's visa was void and of no legal effect.

The Federal Court of Australia allowed the appeal, set aside the orders of the primary judge, and issued new orders. The court prohibited the Minister from acting on the decision made on 14 March 2002, declared that decision void and of no legal effect, and ordered the Minister to pay the appellant's costs for both the proceeding before the primary judge and the appeal.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders of the primary Judge made on 5 May 2004 be set aside.

3. In lieu of the orders made by the primary Judge it be ordered and declared as follows:

1. The respondent be prohibited from acting on the decision in relation to the appellant made by the Minister for Immigration and Multicultural and Indigenous Affairs on 14 March 2002.

2. It be declared that the said decision is void and of no legal effect.

3. The respondent pay the appellant’s costs of the proceeding before the primary Judge.

4. The respondent pay the appellant’s costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Mr Star relied on the qualification stated by Mason J in Peko-Wallsend, at 40:‘Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.’ (Emphasis added.)Mr Star contended that it had been open to the primary Judge to reach the following conclusion ([2004] FCA 543, at [57]):‘In some cases, erroneous information regarding a person’s antecedents might lead to the invalidity of a decision to remove that person on character grounds. In the present case, however, the objective facts strongly suggest that the matters that were erroneously placed before the Minister played little, if any, role in his decision. It was the very serious offences committed in 1990, coupled with the fact that some of those offences were committed whilst the [appellant] was on bail, that plainly swayed the Minister, and not the cannabis offences committed at a later time.’ It will be noted that the qualification stated by Mason J in Peko-Wallsend is directed to the situation where a decision-maker fails to take into account a relevant consideration, but the failure could not have materially affected the decision. Peko-Wallsend itself was a case arising under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’). Accordingly, the High Court was concerned only with the statutory grounds for judicial review under the ADJR Act, not with the concept of jurisdictional error. In the present case, however, the appellant can succeed only if he establishes jurisdictional error on the part of the Minister.If Mason J’s observations apply in the present context, as both parties appeared to assume, they might mean either: that a failure to take into account relevant considerations will not constitute jurisdictional error if the failure could not have materially affected the decision; or alternatively that the failure constitutes a jurisdictional error, but that relief should be withheld as a matter of discretion where the failure could not have materially affected the decision.Ex parte Aala The decision in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, although concerned with a contravention of the rules of procedural fairness, sheds some light on these questions. In that case, Gaudron and Gummow JJ (with whom Gleeson CJ and Hayne J agreed) said that the statement of Gibbs CJ in R v Ross-Jones; Ex parte Green (1984) 156 CLR 185, at 194, should be accepted as the correct approach to the exercise of original jurisdiction in which a writ of prohibition is sought against an officer of the Commonwealth. (Such relief is sought in the present case.) Gibbs CJ’s statement was as follows:‘If, therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course.’Gaudron and Gummow JJ (at 106 [51]-[52]) took the expression ‘want or excess of jurisdiction’ in this passage to include the consequences of a failure to observe the rules of natural justice in the exercise of a power or authority conferred by statute. Their Honours said (at 116-117 [80]) that in the case before them the denial of natural justice had deprived the prosecutor of the ‘possibility of a successful outcome’, citing Stead v State Government Insurance Commission (1986) 161 CLR 141, at 147.

Ratio Decidendi

Legal Principle Established

Items 32 and 33 of the transitional provisions contained in Schedule 1 to the Amendment Act are as follows:“32 Transitional –review of adverse pre‑commencement decisions under the Migration Act 1958(1)Despite the amendments of sections 500 and 502 of the Migration Act 1958 made by this Act, those sections and the Administrative Appeals Tribunal Act 1975 continue to apply, in relation to a review of a decision made under section 501 of the Migration Act 1958 before the commencement of this item, as if:(a)those amendments had not been made; and(b)section 501 of the Migration Act 1958 had not been repealed by this Act.(2)The repeal and substitution of subsection 500(4) of the Migration Act 1958 made by this Act does not imply that an application may be made, or could have been made, to the Administrative Appeals Tribunal for review of a decision to which a certificate under section 502 of the Migration Act 1958 applies.33 Transitional – setting aside and substitution of non‑adverse pre‑commencement decisions under section 501 of the Migration Act 1958(1)This item applies if:(a)a delegate of the Minister; or(b)the Administrative Appeals Tribunal;makes, or has at any time made, a decision (the original decision):(c)to grant a visa to a person as a result of not exercising the power conferred by section 501 of the Migration Act 1958 (as in force at any time before the commencement of this item or as continued in force by item 32) to refuse to grant a visa to the person; or(d)not to exercise the power conferred by section 501 of the Migration Act 1958 (as in force at any time before the commencement of this item or as continued in force by item 32) to cancel a visa that has been granted to a person.(2)Section 501A of the Migration Act 1958 applies to the original decision in a corresponding way to the way in which it applies to a decision referred to in subsection 501A(1) of that Act.”THE PRIMARY JUDGE The Minister could only set aside the Tribunal’s decision of 4 July 2001 if that decision was an “original decision”. Before the primary judge counsel for the appellant contended that it was not an original decision, because Parliament could not have intended a decision on appeal from the Minister personally to be so regarded. Otherwise a decision by the Minister to cancel a visa would be reviewed by the Tribunal, which in turn would have its decision not to cancel the visa reviewed by the Minister himself. The primary judge rejected this contention on the ground that it sought to place a qualification or gloss upon the words in s 501A(1)(c) and (d). Counsel for the appellant submitted that in reviewing the Tribunal’s decision under s 501 the Minister had applied the wrong test, namely the current or new character test rather than the old character test. Reliance was placed on item 33(2) of Schedule 1 to the Amendment Act. It was submitted that because item 32(1)(b) required the Tribunal to apply the old character test (which was common ground), and item 33(2) rendered the new power under s 501A applicable to the original decision “in a corresponding way” to the way in which it applied to a decision referred to in s 501A(1), the same test had to be applied by the Minister as had been applied by the Tribunal.