McCulloch v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

McCulloch v Minister for Home Affairs [2019] FCA 54

File number: NSD 787 of 2018
Judge: MARKOVIC J
Date of judgment: 31 January 2019
Catchwords: MIGRATION – where the applicant’s visa was cancelled by a delegate of the Minister pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Act) – where applicant seeks judicial review of a decision of the Assistant Minister not to revoke the delegate’s decision under s 501CA(4) of the Act – whether the Minister did not have jurisdiction to consider whether or not to revoke the cancellation decision, thereby making the Assistant Minister’s decision void – whether the Minister misconstrued material information resulting in him constructively failing to exercise his jurisdiction – application dismissed.
Legislation: Migration Act 1958 (Cth) ss 496, 497, 501, 501CA
Cases cited:

Aciek v Minister for Immigration and Border Protection (2017) 327 FLR 412; [2017] FCCA 3237

Carltona Ltd v Commissioners of Works [1943] 2 All ER 560

Minister for Home Affairs v Aciek [2018] FCAFC 120

Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81
Date of hearing: 4 September 2018
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 61
Solicitor for the Applicant: Mr D Gu of ProActive Legal
Counsel for the Respondent: Mr P Knowles
Solicitor for the Respondent: Mills Oakley

ORDERS

NSD 787 of 2018
BETWEEN:

TE AHU ROBERT WILLIAM MCCULLOCH

Applicant
AND:

MINISTER FOR HOME AFFAIRS

Respondent

JUDGE:

MARKOVIC J

DATE OF ORDER:

31 JANUARY 2019

THE COURT ORDERS THAT:

1.The applicant’s amended originating application filed on 4 September 2018 be dismissed.

2.The applicant pay the respondent’s costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

MARKOVIC J:

  1. The applicant, Te Ahu McCulloch, seeks judicial review of a decision of the Assistant Minister for Home Affairs (Assistant Minister) made under s 501CA(4) of the Migration Act 1958 (Cth) (Act) not to revoke the decision made by a delegate of the respondent (Minister) to cancel his Class TY Subclass 444 Special Category (Temporary) Visa (Visa).  The delegate’s decision (Cancellation Decision) was made under s 501(3A) of the Act.

  2. Mr McCulloch raises two grounds of review in his amended originating application filed on 4 September 2018 (Amended Originating Application) which are respectively set out at [19] and [48] below. In summary, Mr McCulloch contends that first, the Minister did not have jurisdiction pursuant to s 501CA(4) of the Act to consider whether or not to revoke the Cancellation Decision, thereby making the Assistant Minister’s purported decision void; and that secondly, the Minister misconstrued material information before him, resulting in him constructively failing to exercise his jurisdiction.

  3. For the following reasons, the application should be dismissed.

    BACKGROUND

  4. Mr McCulloch is a citizen of New Zealand.  On 1 July 2003 he entered…

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Details
Case
[2019] FCA 54
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Mr McCulloch, a New Zealand citizen, sought judicial review of a decision by the Assistant Minister not to revoke the cancellation of his visa under s 501CA(4) of the Migration Act 1958. The visa was cancelled under s 501(3A) of the Act on the basis that Mr McCulloch had a substantial criminal record and was serving a term of imprisonment. Mr McCulloch contended that the Assistant Minister's decision was void as the Minister did not have jurisdiction to consider whether or not to revoke the cancellation decision due to the failure to comply with s 501CA(3) of the Act. This section requires the Minister to personally give a written notice to the visa holder that sets out the original decision and particulars of relevant information, and to invite the visa holder to make representations about revoking the decision. Mr McCulloch also argued that the Minister misconstrued material information, resulting in a constructive failure to exercise his jurisdiction.

The court considered whether the Minister had jurisdiction to consider whether or not to revoke the cancellation decision and whether the Minister misconstrued material information. In the case of Aciek, the court found that the power to give a written notice to a visa holder about the cancellation of their visa is a power of the Minister under the Act and must be exercised by the Minister personally or delegated by the Minister to another person. The court in the present case found that the person who sent the Cancellation Decision Letter was neither a delegate of the Minister nor expressly authorised by the Minister to send the letter. However, the court held that this did not render the Assistant Minister's decision void. The court held that the failure to comply with s 501CA(3) did not deprive the Minister of jurisdiction to consider whether or not to revoke the cancellation decision. The court also held that there was no evidence that the Minister misconstrued material information.

The court dismissed Mr McCulloch's application and ordered that he pay the respondent's costs.

Orders

Orders of the court

1. The applicant’s amended originating application filed on 4 September 2018 be dismissed.

2. The applicant pay the respondent’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the following reasons, the application should be dismissed.BACKGROUND Mr McCulloch is a citizen of New Zealand. On 1 July 2003 he entered Australia and was granted the Visa. On 1 June 2016 Mr McCulloch was convicted by the District Court of New South Wales (District Court) of one count of persuading a witness to give false evidence with intent to procure an acquittal, two counts of contravening an apprehended domestic violence order and one count of assault. He was sentenced to an aggregate of three years and six months imprisonment. By letter dated 6 April 2017 (Cancellation Decision Letter) Mr McCulloch was notified of the Cancellation Decision. That letter informed Mr McCulloch, among other things, that:You were granted a Class TY Subclass 444 Special Category (Temporary) visa on 01 July 2003 (your visa). The purpose of this notice is to advise you that on 06 April 2017 your visa was cancelled under s 501(3A) of the Migration Act 1958 ('the Act'). …Based on the information before the Department, the decision maker (who is a delegate of the Minister) was satisfied that you do not pass the character test on the following ground:You have a substantial criminal record within the meaning of s 501(6)(a) on the basis of s 501(7)(a), (b) or (c) of the Act.Under s 501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. On 01 June 2016 you were convicted of Persuading a witness to give false evidence with intent to procure an acquittal, Contravening an apprehended domestic violence order (two counts) and Assault and sentenced to an aggregate of three years and six months imprisonment.…Based on the information available, the decision maker was also satisfied that, at the time of the decision, you were serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory....Opportunity to seek revocation of the cancellation decisionWhile your visa has been cancelled and you no longer hold a visa, you have an opportunity to make representations about revoking the decision to cancel your visa.You are hereby invited to make representations to the Minister about revoking the decision to cancel your visa. The representations must be made in accordance with the instructions outlined below, under the headings entitled "How to make representations about revocation of the decision to cancel your visa" and "Timeframe to make representations about revocation".The decision to cancel your visa may be revoked by the Minister under s501CA(4) of the Act if you make representations in accordance with the specified instructions and the Minister is satisfied that:•you pass the character test (as defined by s 501 of the Act); or•there is another reason why the decision to cancel your visa should be revoked.…(original emphasis) Under the signature appearing on the Cancellation Decision Letter was the following:Position Number: 60011903- JENational Character Consideration CentreDepartment of Immigration and Border Protection

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

By letter dated 6 April 2017 (Cancellation Decision Letter) Mr McCulloch was notified of the Cancellation Decision. That letter informed Mr McCulloch, among other things, that:You were granted a Class TY Subclass 444 Special Category (Temporary) visa on 01 July 2003 (your visa). The purpose of this notice is to advise you that on 06 April 2017 your visa was cancelled under s 501(3A) of the Migration Act 1958 ('the Act'). …Based on the information before the Department, the decision maker (who is a delegate of the Minister) was satisfied that you do not pass the character test on the following ground:You have a substantial criminal record within the meaning of s 501(6)(a) on the basis of s 501(7)(a), (b) or (c) of the Act.Under s 501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. On 01 June 2016 you were convicted of Persuading a witness to give false evidence with intent to procure an acquittal, Contravening an apprehended domestic violence order (two counts) and Assault and sentenced to an aggregate of three years and six months imprisonment.…Based on the information available, the decision maker was also satisfied that, at the time of the decision, you were serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory....Opportunity to seek revocation of the cancellation decisionWhile your visa has been cancelled and you no longer hold a visa, you have an opportunity to make representations about revoking the decision to cancel your visa.You are hereby invited to make representations to the Minister about revoking the decision to cancel your visa. The representations must be made in accordance with the instructions outlined below, under the headings entitled "How to make representations about revocation of the decision to cancel your visa" and "Timeframe to make representations about revocation".The decision to cancel your visa may be revoked by the Minister under s501CA(4) of the Act if you make representations in accordance with the specified instructions and the Minister is satisfied that:•you pass the character test (as defined by s 501 of the Act); or•there is another reason why the decision to cancel your visa should be revoked.…(original emphasis) Under the signature appearing on the Cancellation Decision Letter was the following:Position Number: 60011903- JENational Character Consideration CentreDepartment of Immigration and Border Protection On 13 April 2017 Mr McCulloch sent his completed form requesting revocation of the Cancellation Decision together with several other documents to the Department of Immigration and Border Protection (now the Department of Home Affairs) (Department). On 18 April 2017 Mr McCulloch’s national police certificate, which provided details of all disclosable court outcomes recorded against him, was sent to the Department (Police Certificate).

Ratio Decidendi

Legal Principle Established

Mr McCulloch further submitted that, accordingly, the requirements of s 501CA(4)(a) are incapable of being satisfied by him until such time as the obligation specified in s 501CA(3) of the Act is lawfully performed. He contended that it followed that the Assistant Minister’s purported decision not to revoke the Cancellation Decision is void on the basis that the Minister’s power under s 501CA(4) cannot be enlivened until at least after the obligation specified in s 501CA(3) is lawfully performed. Consideration In effect Mr McCulloch alleges that the Assistant Minister’s decision not to revoke the Cancellation Decision is invalid because of a failure to comply with essential preconditions to the exercise of the power in s 501CA(4) of the Act, namely the issue of an invitation under s 501CA(3). The Minister concedes that the officer who sent the Cancellation Decision Letter was neither a person to whom the Minister had delegated his authority under the Act nor expressly authorised by the Minister to send the letter. Central to the applicant’s submissions in support of this ground is the decision in Aciek. Before proceeding further it is useful to set out that decision in some detail. In that case Mr Aciek’s visa was cancelled by a delegate of the Minister pursuant to s 501(3A) of the Act. He was notified of the cancellation of his visa by letter dated 22 February 2016 (referred to in the reasons as the Cancellation Notice) which was prepared by a Departmental officer or a person on her behalf. Mr Aciek’s grounds of review were directed to the lawfulness of the giving of the Cancellation Notice. While not expressly pleaded, in submissions Mr Aciek alleged that the Cancellation Notice was invalid because the Departmental officer who purported to send it was not delegated the power provided for in s 501CA(3) of the Act. As is the case here, the Minister conceded that the power under s 501CA(3) of the Act had not been specifically delegated to the relevant Departmental officer. The hearing proceeded before Judge Manousaridis on the basis that one of the grounds raised by Mr Aciek was that the Cancellation Notice was of no effect because it was not given personally by the Minister and the power to give the notice and provide the particulars of “relevant information”, as set out in s 501CA(3), had not been delegated to the Departmental officer who purported to give it: Aciek at [22]-[23]. As Mr Aciek filed his application out of time, the court had to first consider whether it should grant an extension of time within which to file the application under s 477(2) of the Act. In doing so, Judge Manousaridis concluded that Mr Aciek had an arguable case that the Departmental officer did not have the power to give the Cancellation Notice. In coming to that view, in his detailed reasons, Judge Manousaridis first considered whether the tasks prescribed by s 501CA(3) of the Act were one of the powers of the Minister under the Act. His Honour found that they did and at [58]-[60] said:58Despite the ubiquity of the use of the word “power” in public and private law, and its analysis in jurisprudence, the concept of “power” has not received any substantial analysis in the cases. One reason may be that “power” has a well-understood and sufficiently unambiguous meaning in the various contexts in which the word is usually employed. For present purposes it is sufficient to refer to one denotation of the notion of “power”, namely, a relationship or potential relationship between two persons or two classes of persons in which the first mentioned person (power repository) has the legal capacity to affect the legal rights or interests of the other person or persons. Whether or not in any given case a person has such legal capacity depends on the existence of a basis (power source) which the law recognises gives the power repository the capacity to affect the legal rights or interests of another or others. In the sphere of private law the power source is usually a contract or some other instrument; and in the sphere of public law the power source is usually a statutory provision. Whether in any given case the power repository can lawfully exercise the capacity conferred by the power source depends on the terms contained in the power source. A statutory provision, for example, expressly or impliedly sets out the acts or classes of acts the power depository may or must do or not do, the circumstances in which the power repository may or must do or not do the acts or classes of acts, and the legal consequences of the power repository’s doing or not doing the acts the statutory provision requires the power repository to do or not do.59This notion of “power” — the capacity or obligation of a power repository to do or not do an act authorised by the power source that affects the interests or legal rights of another or others — is present in the language by which the principles governing the implication of a duty to accord procedural fairness are stated and expounded. The following is an example:The implication of procedural fairness is the product of a strong common law presumption applicable to any statutory power the exercise of which is capable of having an adverse effect on legally recognised rights or interests.60In my opinion it is reasonably arguable that the word “powers” that appears in the expression “Minister’s powers under this Act” in s 496 of the Act has the meaning I have concluded is carried by the word “power”; and that the expression “Minister’s powers under this Act” denotes all of the acts that provisions of the Act permit the Minister to do or not do, or which require the Minister to do or not do, that affect the legal rights and interests of other persons. In those circumstances, it is reasonably arguable that, subject to the potential application of the Carltona principles (which I briefly address later in these reasons), the set of tasks identified in s 501CA(3) of the Act is a “power” and, hence, is one of the “Minister’s powers under [the] Act” which the Minister must exercise personally, or which he or she may under s 496 of the Act delegate to another person to exercise.a)First, s 501CA(3) identifies the acts the Minister must do. The Minister must, as soon as practicable after making the original decision, give to the person a “written notice that sets out the original decision” and “particulars of the relevant information”, being the information identified in s 501CA(2), namely, information the Minister considerers (sic) “would be the reason, or a part of the reason, for making the original decision” and which is “specifically about the person or another person and is not just about a class of persons of which the person or other person is a member”. The Minister must invite the person whose visa has been cancelled to make representations to the Minister “about revocation of the original decision”. The Minister must also consider the way that is “appropriate in the circumstances” to give to the person whose visa has been cancelled written notice of the decision to cancel and particulars of the “relevant information”. Further, from the fact the Minister is required to give “particulars of the relevant information”, it follows that s 501CA(3) requires the Minister at the very least to undertake the far from trivial task of identifying and expressing in some way the information he or she considered “would be the reason, or a part of the reason, for making the original decision”.b)Second, the proper exercise of the tasks prescribed by s 501CA(3) of the Act creates a legal right for the benefit of persons whose visa has been cancelled under s 501(3A). If properly exercised, the giving of a notice under s 501CA(3) creates a right to make representations to the Minister to revoke the cancellation; and the making of such representations, assuming they are made according to the requirements of the notice properly given under s 501CA(3) of the Act, confer a right on the person to apply to a court of appropriate jurisdiction for a writ of mandamus to compel the Minister to consider according to law the representations with a view to determining whether the Minister should exercise the power under s 501CA(4) of the Act to revoke the cancellation of the visa. If, on the other hand, the tasks prescribed by s 501CA(3) are not undertaken, or properly undertaken, by the Minister or his delegate, the person whose visa has been cancelled would be entitled to compel the performance of those tasks by mandamus.(footnotes omitted and emphasis added)