MIMIA v Nystrom
[2006] HCATrans 197
[2006] HCATrans 197
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M5 of 2006
B e t w e e n -
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Appellant
and
STEFAN NYSTROM
Respondent
GLEESON CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 12 APRIL 2006, AT 10.16 AM
Copyright in the High Court of Australia
MR A.L. CAVANOUGH, QC: If the Court pleases, I appear with my learned friend, MR S.P. DONAGHUE, on behalf of the appellant. (instructed by Australian Government Solicitor)
MS D.S. MORTIMER, SC: If the Court pleases, I appear with my learned friend, MS L.G. DE FERRARI, on behalf of the respondent. (instructed by Victoria Legal Aid)
GLEESON CJ: Yes, Mr Cavanough.
MR CAVANOUGH: Can I indicate first to the Court that our instructors have received written confirmation from each Attorney that they do not wish to intervene.
GLEESON CJ: Thank you.
MR CAVANOUGH: The issues raised by this case have developed as the case has progressed through the courts below. The appeal now raises four issues which we would propose to address in this order: first, whether the power conferred by section 501(2) of the Migration Act is unavailable or restricted by reason of sections 200 and 201 of the Act; secondly, whether the Minister is obliged in exercising the power conferred by section 501(2) to take into account the nature of the visa that is to be cancelled, whether directly under section 501(2) or indirectly under section 501F(3).
In that regard, there seems to be no suggestion on the other side now that different principles would apply with respect to an absorbed person visa as compared to any other kind of visa, contrary to perhaps what might have been the view of the Full Court below. It seems that the respondent does not seek to defend the Full Court’s reasoning concerning absorbed person visas at appeal book 113, point 7, paragraph 19. That is to say that the proposition that the absorbed person visa category is very special and, therefore, a decision to cancel such a visa requires particular attention to be given to the very fact that it is an absorbed person visa.
The third issue is whether or not the respondent actually held the transitional permanent visa which the Minister was told that he held in relation to the proposed cancellation. That issue turns on the interaction of regulation 4 of the Migration Reform (Transitional Provisions) Regulations 1994 in section 34(2) of the Act.
GUMMOW J: Wait a minute. Which regulation?
MR CAVANOUGH: Regulation 4 of the Migration Reform (Transitional Provisions) Regulations 1994.
GUMMOW J: Statutory rule 261.
MR CAVANOUGH: I think that is right, your Honour, 261 of 1994, regulation 4(1) provides:
Subject to regulation 5, if, immediately before 1 September 1994, a non‑citizen was in Australia as the holder of a permanent entry permit, that entry permit continues in effect on and after 1 September 1994 as a transitional (permanent) visa that permits the holder to remain indefinitely in Australia.
There seems to be no dispute any longer that the non‑citizen was in Australia as the holder of a permanent entry permit immediately before 1 September 1994.
GUMMOW J: What, being the absorbed persons visa?
MR CAVANOUGH: No, this regulation ‑ ‑ ‑
GUMMOW J: “[W]as in Australia as the holder of a permanent entry permit”. What was the permanent entry permit?
MR CAVANOUGH: It had a title under the old legislation. It was not the absorbed person visa; it was ‑ ‑ ‑
GUMMOW J: Had permits, not visas in those days.
MR CAVANOUGH: I beg your pardon, your Honour.
GUMMOW J: It is in an era when there were permits, not visas.
MR CAVANOUGH: Yes. The actual permit is at page 12 of the appeal book. The code designation was K51R(G). What those letters mean is explained in the circular that is in the appeal book. It meant that he had come here as an accompanying person with his parents to stay permanently and he had a permanent residence permit, if you like ‑ ‑ ‑
GUMMOW J: So the question is regulation 4 in conjunction with some section.
MR CAVANOUGH: The Minister submits that the respondent was deemed to be granted a transitional permanent visa by the operation of this regulation. My learned friends deny that. They say whilst it would apply on its face, there is a section of the Act, section 34(2), which provides for the grant of absorbed person visas. It is acknowledged that the respondent was also deemed to be granted an absorbed person visa and my learned friends say that means that regulation 4 did not operate. In other words ‑ ‑ ‑
GUMMOW J: Section 44(2) in which ‑ ‑ ‑
MR CAVANOUGH: Section 34(2) in the current ‑ ‑ ‑
GUMMOW J: Yes.
MR CAVANOUGH: Now, we say, true it is that he falls within that provision also; that is to say he had two visas, not just one.
GUMMOW J: And that 1 September 1994 is critical to both?
MR CAVANOUGH: Yes, exactly the same moment, because both provisions came into force at the exactly the same moment and hence a visa was granted to the respondent under each of these sets of provisions, we say. It is unusual perhaps that a non‑citizen may wish to say they were not granted a visa, but it suits my learned friends’ purposes in this case to say they were not granted one of those two kinds of visas.
GLEESON CJ: Is there anything inherently inconsistent between the two visas that would mean that you cannot have both at the same time?
MR CAVANOUGH: My learned friends will no doubt take the Court to some provisions which indicate that the normally envisaged situation is that a newly granted visa will supersede a previously granted visa, but we say there is nothing in the Act that prevents the holding of two visas at the same time if they are created at the same time, and indeed there are provisions of the Act that expressly acknowledge the possibility that when say one visa is cancelled, another will remain in force, for instance, section 15 of the Act.
Your Honour will see that section 15 in its last few words envisages that there can be prior to a cancellation more than one visa in existence. Similarly, sections 82(2) and (3) advert to the situation where a particular kind of visa is saved from the normal rule whereby a new one supersedes an old one. In addition, there is a section which assumes significance in this case in other respects, and that is section 501F(3). That provides:
If:
(a) the person holds another visa; and
(b)that other visa is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection;
the Minister is taken to have decided to cancel that other visa.
That relates to the situation where there has been a cancellation under 501A or 501B. So we say there are three separate sets of provisions in the Act which clearly recognise that there might, for one reason or another, be more than one visa in existence at a time and it might be a bridging visa or it might even be a substantive visa.
GUMMOW J: I took you off your course. You said that was the third point.
MR CAVANOUGH: Yes, your Honour. The fourth point is what we would call a misdescription issue. That is, if we are wrong about issue 3 and if it is held that regulation 4 was excluded from operating by virtue of section 34(2) of the Act, and so the Minister therefore misdescribed the respondent’s visa in making her cancellation decision, whether, nonetheless, the Minister’s decision was valid because she understood the nature of the permission to remain in Australia that she was cancelling, whatever label be given to that permission. So that is our answer even if we are wrong in relation to the third issue. So the four issues might be called, first, the power issue, the relevant considerations issue, the correct visa issue and the misdescription issue.
If I could turn first to the power issue, the majority of the Full Federal Court – I am sorry, just before I get to that my learned junior reminds me I have not actually answered the learned Chief Justice’s question which was whether the rights conferred by these two visas were in any way different. No, they were not. They were identical in the rights they conferred, that is to say a right to remain indefinitely in Australia but not to re‑enter Australia. I am sorry, your Honour, I should have ‑ ‑ ‑
GUMMOW J: You will come back to this, but it does seem strange that the mind having been focused by the lawmakers on 1 September 1994, they came up with these two systems which you say produced the same conditions.
MR CAVANOUGH: Yes, it was a pretty complicated set of provisions that all came into force on 1 September 1994 and there were amendments made at a late stage, so in a sense it is not so surprising that that happened. What we say is this, that the critical motive or the critical object to be achieved on the part of Parliament was to ensure that there were no unintended gaps whereby people were made illegal or unlawful unintentionally. So we say it is not surprising there may be some overlap. What would be more surprising would be if Parliament had overlooked some cases whereby some people became unintentionally here unlawfully.
As your Honours may recall, the critical change in 1994 was to transfer everybody to a visa and if one did not hold a visa that was in effect one was an unlawful or prohibited non‑citizen and subject to removal. Parliament did not want, we say, to have people fall into that category other than the ones that were really meant to fall into that category.
GUMMOW J: There had been an earlier shift in 1984, was there not, from the migration power to the aliens power?
MR CAVANOUGH: Yes. One sees, in looking at the history, how that plays out over the next 10 years with some of the amendments. What we will be saying eventually in relation to the absorbed person visa is that there was – perhaps it is better not to jump ahead. I had better do it in proper sequence, if your Honour pleases.
If I can just then turn to the first issue, the power issue. The majority below made numerous comments that suggested a view that the power conferred by section 501(2) was limited by sections 200 and 201 and the references 114 point 1, 114 point 9 and 116 point 9, but it was not actually an argument that was put by my learned friends to the Full Court but the respondent has now adopted the argument and places it at the forefront of his arguments.
Just one matter of a correction on both sides in terms of background facts on which nothing particularly turns. There is no dispute that section 201, the deportation provision, did not actually catch the respondent.
GUMMOW J: I have Reprint No 8.
MR CAVANOUGH: Reprint No 9 is the one we are mainly working from, but Reprint No 8 will probably be relevantly the same. Section 201 relates to a certain category of persons who can be deported under section 200. The requirements for such a person to be liable to deportation are set out in paragraphs (a), (b) and (c) of section 200.
Now, this respondent did not commit an offence of the kind referred to in (c) until about 1990 and by that time he had been in the country for some 16 years so to the extent that in our reply there might be any confusion caused by the third sentence of paragraph 1, I should clear it up. That sentence reads “However, as he had been in Australia for over ten years when these offences were committed” – these are the Children’s Court offences from the age of 10 and following – “it is not submitted that he fell within s 201 of the Act.” He could not have fallen within section 201 of the Act unless and until he committed an offence that attracted a prison sentence of 12 months or more and he had not done that until 1990.
GUMMOW J: At 201, it is in Part 2 of the Act, it is a descendant of the old legislation, is it, going back to 1900?
MR CAVANOUGH: Yes, if one goes back to Pochi’s Case, for instance, section 12 of the Migration Act, I think it was for many years - sections 12, 13, and 14 of the old Act provided for the deportation of aliens and of immigrants with separate provisions in relation to them and some special provisions also in respect of ‑ ‑ ‑
GUMMOW J: Division 9 does not tell you anything about cancellation of visas.
MR CAVANOUGH: No, nothing. Division 9 is self-contained, it deals with deportation.
GUMMOW J: I know but deportation not consequential upon or followed by removal of a visa.
MR CAVANOUGH: No, that is right.
GUMMOW J: Prima facie, if you have the visa you are entitled to be here but that entitlement is not expressly removed by 201. That is a bit of a mystery.
MR CAVANOUGH: There is a provision that says where a person is deported pursuant to section 200, their visa ceases to be in effect.
GUMMOW J: Where is that?
MR CAVANOUGH: Section 82(4).
GUMMOW J: Thank you.
MR CAVANOUGH: That is different though from a visa being cancelled under the other scheme.
GUMMOW J: I understand that, but your submission is there are two schemes.
MR CAVANOUGH: Yes, two separate schemes and the Full Court of the Federal Court has so held on numerous occasions and we say that this Court in Jia approved the relevant decisions and that really my learned friends would have to ask the Court to depart from Jia to come to a different decision in this case. They submit that it can be distinguished, we say it cannot.
Perhaps it is convenient then to take your Honours to the relevant passage in Jia 205 CLR 507 at page 535, paragraph 85 and perhaps it is necessary to read paragraph 84 to understand how this needs to be said. If I could invite your Honours to notice that in the quoted passage from Gunner the sentence at the end reads:
Rather, he exercised a separate statutory power which was available to him and the exercise of which was directed towards the purpose for which the power was conferred, namely the removal from Australia of non-citizens who have committed serious crimes or are otherwise not of good character.
Can I indicate that those remarks were the subject of an expression of agreement by Justice Kirby at page 547, paragraph 130 and also by Justice Hayne, page 561, paragraph 176 and we would submit also by Justice Callinan at page 601, paragraph 325, although the reference is not quite as clear.
The case of Gunner was 1998. It was decided in relation to the form of sections 201 and 501 prior to the 1998 amendments but later cases in the Federal Court say that the principle is unaffected by those changes. The cases to that effect are Lu v Minister (2000) 176 ALR 79, which I think is on our list. It is a short judgment of the Full Court. Perhaps if I could take the Court to paragraphs [11] and following where there is a reference to Jia’s Case and to what was said in Gunner earlier, perhaps just to the end of paragraph [16]. Perhaps if I read [15] – perhaps your Honours have seen [15] but that is the particular paragraph we rely on.
Bridges is the other case (2001) 114 FCR 456, particularly at page 465 point 2. It is really the whole of paragraph 37 commencing on page 464 but the critical point is, as I say, 465 point 2:
There is no reason to suppose that the reasoning in Gunner does not apply to s 501 in its present form. It is true that s 501 provides a source of power to deport a non-citizen by reason of, amongst other things, his or her criminal history. But it is a distinct power, with its own legislative history, which requires, or at least permits, criteria to be taken into account different to those applicable to s 200 of the Migration Act.
So we say it is well established in the Federal Court that the provisions of sections 200 and 201 do not impinge at all on section 501.
Our learned friend’s submission on this is that in those cases both powers were available, whereas here Mr Nystrom was not liable to be deported under section 200 because he had not met the criterion in section 501 as to committing the offences before the expiration of a 10‑year period of commencement of permanent residence. We say that that is a distinction without a relevant difference. A case indistinguishable from the present case on the facts was Moran v Minister for Immigration [2006] FCA 242 decided by Justice Ryan very recently and this very argument, this very attempt to distinguish these cases was put to Justice Ryan and he rejected it, particularly at paragraphs 139 to 144. We respectfully adopt his Honour’s reasoning and submit that it is correct and shows that the distinction is no distinction at all.
The most relevant paragraph is perhaps 143 in Justice Ryan’s judgment. This was a person who had been in Australia for many years and was not liable to deportation under section 200.
HEYDON J: Paragraph 143 relies on dicta of Justices Moore and Gyles which are ‑ ‑ ‑
MR CAVANOUGH: It refers to the dicta of Justices Moore and Gyles in this very case which were relied upon by counsel for the applicant in that case and his Honour says, “Well, I am not going to follow them” ‑ ‑ ‑
GUMMOW J: He distances himself.
HEYDON J: I see. So it is not really 143; it is 144.
GUMMOW J: Paragraph 144, I think. He politely distances himself. He does not want to contest our decisions either.
MR CAVANOUGH: Nor that of the other Full Federal Court cases which were not cited below in the present case and were not mentioned by Justices Moore and Gyles in the present case. So we say this is not an appropriate case for leave to reopen Jia and my learned friends have not indicated that they would seek leave to.
HEYDON J: What is their argument then?
MR CAVANOUGH: Their argument is that it is distinguishable because here this person was not liable to deportation under 201 because he had been here too long and as a matter of fact that was not the case in relation to the other earlier cases. It was the situation though, in relation to Moran. We say the principle is clear. It does not turn on whether the person does or does not fall within 201; it turns on whether those sets of powers are separate parallel powers or not.
Our learned friends would seek to import into section 501 as a limitation on the power which it confers a particular aspect of section 201, namely the 10‑year rule. That is only one aspect of section 201. Another qualification is that the offences be of a particular seriousness. Why would that not be imported as well if, really, section 501 were to be subject to section 201. There is no suggestion that that is so, that section 501 can only apply with respect to criminal offences that attract a sentence of 12 months or more.
GUMMOW J: Section 499(1A) assumes the concurrence of the two systems.
MR CAVANOUGH: It does, and we have cited that in our submissions, but our learned friend say, yes, but that only operates where both powers are available on the facts of the particular case. That is their response to that, your Honour. My response to their response is to say, no, section 499(1A) really confirms what is otherwise pretty obvious, that these are separate streams of power and if a person is liable to be deported under section 200, they are liable to be deported under section 200. If a person is liable to have their visa cancelled under section 501, they are liable to have their visa cancelled under section 501.
HAYNE J: What is the principle of statutory construction or process of statutory construction which you understand to be engaged in support of the argument against you? Is it general provision versus specific provision?
MR CAVANOUGH: That is said. There is also the, if you like, expressio unius refinement sometimes expressed in the Latin – my Latin has escaped me ‑ ‑ ‑
HEYDON J: Expressio unius est exclusio alterius.
MR CAVANOUGH: No, an even more refined one, your Honour. I will need to get out my ‑ ‑ ‑
GLEESON CJ: …..generalia ‑ ‑ ‑
MR CAVANOUGH: My Brothers would not be happy because ‑ ‑ ‑
GLEESON CJ: ‑ ‑ ‑ specialibus non derogant.
MR CAVANOUGH: No, your Honour, even more refined than that. Expressum facit ‑ ‑ ‑
GLEESON CJ: Cessare tacitum.
MR CAVANOUGH: That is the one. As I say, the Brothers would not be happy with my failing to remember that. But that is what they say. They rely on those sorts of cases that, for instance, arose in the industrial jurisdiction where there was a general power in an industrial commissioner to make such order as ‑ ‑ ‑
GUMMOW J: Anthony Hordern.
MR CAVANOUGH: Yes, those cases. We say that they have no application here. One has to read the provisions first – that is what really matters – and see whether there really is some repugnance ‑ ‑ ‑
GUMMOW J: What is the actual reasoning in Anthony Hordern?
MR CAVANOUGH: The reasoning there was that there were limitations on the ‑ ‑ ‑
GUMMOW J: Justice McHugh was very fond of it.
MR CAVANOUGH: I will have to try and remember, but there are two of the cases. One dealt with preference to unionists and one dealt with some other ‑ ‑ ‑
GUMMOW J: Anthony Hordern is the first one.
MR CAVANOUGH: Is the first one, yes.
HAYNE J: 47 CLR 1, particularly at pages 7 and 20 to 21.
MR CAVANOUGH: Yes, this was in relation to preference for female members of the union, I think. An award said:
That in all cases in which an employer employed on an average fewer than fifty operatives female members of the Union should be employed in preference to other females; and in all cases in which an employer employed on an average fifty or more operatives, that female members of the Union should be employed in preference to other females, other things being equal.
Held . . . that the power of the Court to grant preference to unionists was limited by sec. 40 of the Commonwealth Conciliation and Arbitration Act, and that the provisions of the award relating to preference were invalid as not complying with the requirements of that section.
So there was a general award‑making power and it was held that you could not under the general award‑making power get around the restrictions on the grant of preference to unionists.
GUMMOW J: It is really page 7, is it not, as Justice Hayne said?
HAYNE J:
When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
MR CAVANOUGH: That is exactly, I think, the passage that the authors of Statutory Interpretation in Australia refer to as the best exemplification of this principle.
GUMMOW J: The cases are gathered together in Downey v Trans Waste (1991) 172 CLR 167 particularly at 171 to 172.
MR CAVANOUGH: Yes, our learned friends have several similar cases in their list. There is no doubt about that principle, but whether it applies here is the question, and we say it does not because one does not have ‑ ‑ ‑
GUMMOW J: It is not the same power.
MR CAVANOUGH: No, it is not the same power, and it is plain on the face of the provisions and taking into account the legislative history as well, but just on the face of them, that they are dealing with different things, as well as conferring different powers. The outcome of an exercise of power under section 200 is a deportation order which, according to section 206, must be executed unless sooner revoked. The outcome of an exercise of power under section 501 is cancellation of the visa the subject of the decision and, by force of section 501F(3), cancellation of any other visa held by the person concerned, save a protection visa or any visa prescribed in the regulations, of which there are none at the moment.
They are different statutory concepts and they are governed by different criteria and they produce different outcomes, albeit in substance, at the end of the day, a decision by the Minister to cancel a visa under section 501 on character grounds will normally result in the compulsory departure of the person from Australia, and that is the purpose of the Minister’s consideration of the matter. But there is no doubt that they are not the same power and there is no doubt that they are governed by different considerations.
GUMMOW J: Justice Dawson, also, at 180 and following in Downey.
MR CAVANOUGH: If your Honour pleases. We have referred in our reply to ‑ ‑ ‑
HEYDON J: Just as a matter of interest, at paragraph 27 on page 116, this argument in the Full Court that you are attacking, was that raised in argument before the Full Court? You did not, or at least your opponent did not raise it.
MR CAVANOUGH: No.
HEYDON J: Did the court raise it with you?
MR CAVANOUGH: I will just check with my junior who was there. My junior’s recollection is that the court asked my junior was there a 10‑year limit on section 501(2) decisions but no one mentioned section 200.
HEYDON J: Yes, thank you.
GUMMOW J: In Downey Justice Dawson, following up what had been said by Justice Deane in Refrigerated Express, put it on repugnancy.
MR CAVANOUGH: Yes, your Honour. The Refrigerated Express Case is one of the ones my learned friends rely on. I looked at that.
GUMMOW J:
as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where general provisions . . . would constitute a departure from that intention by encroaching on that subject matter.
MR CAVANOUGH: Yes. That is right. That is the principle.
HAYNE J: That being further explained by that passage referred to by Justice Dawson from Justice Dixon’s reasons in Wallis that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, the same matter is not to be done according to some other course.
MR CAVANOUGH: That is right.
HEYDON J: You say there is no repugnancy, they are just alternatives.
MR CAVANOUGH: No, they are just alternatives, and cumulative powers, as the Full Court has said. There is no repugnancy. The subject matters are different, deportation and removal, so they are not powers to do the same thing, even though the ultimate consequence may, in most cases, be the same. They will not always be the same because a person whose visa is cancelled has the opportunity to apply for at least a protection visa – they can apply whether they are qualified or not and if they happen to be qualified they can get one and so they will not necessarily be removed from the country by reason of a cancellation decision, whereas a person who is the subject of a deportation order is to be deported accordingly, unless the Minster revokes the order.
Also there are differences in terms of detention consequences. A person subject to a section 200 deportation order is not subject to mandatory detention but only to discretionary detention whilst challenges take place, whereas a person whose visa is cancelled, who has no other visa, is subject to mandatory detention and removal.
GUMMOW J: Would you just give us the section. Do not just do it now but your junior can busy himself.
MR CAVANOUGH: Yes. The sections for the detention regimes are section 253(9) as against section 189. The section that says you can, in effect, still be given a protection visa is section 501F(3) itself which refers to protection visas as an exception – and I think there is also 501E. I will just turn to that. Yes, that is to the same effect. Does your Honour see 501E, in particular (2).
GUMMOW J: Yes, thank you.
MR CAVANOUGH: Of course, different offences can be considered under section 201 as compared to section 501 in deciding whether an order should be made in the first place.
In any event, if there were any conflict between the two sections, we would submit that the conflict ought to be resolved in favour of section 501(2) because it is the more recent provision. We do not need to argue that there has been an implied repeal of section 201. We just submit that it is irrelevant because it does not purport to confine section 501(2) and not because it has been impliedly repealed. We note that the Court has recently looked at these questions in Ferdinands v The Commissioner of Employment, as to what amounts to implied repeal and what does not.
GLEESON CJ: And you deport a person under section 201 without removing the visa.
MR CAVANOUGH: Yes, but 82(4) says once they have been deported, that is once they have landed overseas, their visa ceases to be in effect.
GLEESON CJ: It assumes you can deport without cancelling a visa.
MR CAVANOUGH: Yes. There is some discussion of this in a joint standing committee of the Parliament for migration which we refer to in our reply headed “Deportation of Non-Citizen Criminals”, June 1998. It will be in the materials, I trust, that were brought to the Court’s attention for today. The critical paragraph is 7.15. This was a report that was available to the Parliament and there was a reference made to it by an opposition member when the 1998 Bill was being debated, so we would submit that it is material that the Court can have regard to with respect to interpretation, albeit that the Minister said in response to what the opposition member, Mr Theophanous had said, “We’re going to have a more broad look at removal of criminals at a later stage”. Nonetheless, this was parliamentary material that fits under 15AB’s descriptions. The last sentence of 7.15 is right on point.
GLEESON CJ: What in a practical sense is the difference between removal and deportation?
MR CAVANOUGH: In terms of the way it is administered, I am not sure that I can say there is any – I imagine people are escorted out. Section 198 deals rather extensively with removal processes. For instance, 198(1) says a person who no longer has a visa can request to be removed. “Removal” is a term that, according to this extrinsic material and other general concepts, does not carry the stigma of deportation, we would respectfully submit.
GLEESON CJ: Presumably this has all been done on the practical assumption that Sweden will accept the respondent?
MR CAVANOUGH: Yes, he is a citizen of Sweden.
GLEESON CJ: Otherwise he would end up like the Ancient Mariner.
MR CAVANOUGH: Yes, that is right.
GLEESON CJ: The Flying Dutchman.
MR CAVANOUGH: Yes, indeed.
GUMMOW J: He had a Swedish passport at some stage.
MR CAVANOUGH: Yes, he was issued with a Swedish passport. There is no dispute that he is a Swedish citizen and still has some distant relatives there, although we concede that, according to the evidence, he has had no real contact with them at any stage really. His mother has but he has not.
This committee has had before it the view of the Department that the 10‑year rule did not prevent visa cancellation. In terms of this argument that my learned friends are putting, we submit that section 200 is no more specific than section 501(2). If one looks at the provisions, there is just as much specificity in 501(2), so those cases do not apply.
There is one other matter that perhaps I should draw attention to and that is this, that the so‑called 10‑year rule itself only commenced operation in 1984. It is not as though it were like an entrenched provision. Our learned friends say it created a right in the respondent not to be removed from Australia or an immunity from deportation or from removal, but it seems an odd conclusion to draw about a provision that only commenced in 1984, some 10 years after he arrived, months before he commenced committing offences.
Previously there was no time limitation in relation to the deportation of aliens for criminal offences. There was a time limitation in respect of immigrants and Commonwealth citizens – being Commonwealth citizens, but there was – immigrants and Commonwealth citizens, but there was no time limitation in respect of aliens until 1984 when there was a rationalisation of those provisions so that they all applied in the same way to everyone. That is all we would want to say about that first issue, if the Court pleases.
The second issue is the relevant considerations issue. The respondent says that the Minister is under an imperative obligation to consider the nature of every visa that she cancels pursuant to section 501(2). The Full Court below reasoned in the same way. We submit that that is not an inference that ought to be drawn in relation to that provision. We say that the Minister could only be required to consider the nature of the visa to be cancelled, whatever that may mean, if the subject matter, scope or purpose of the Act implicitly imposed such an obligation according to ordinary principles.
GLEESON CJ: What would be the different conclusions you might come to upon considering the nature of each of these two visas?
MR CAVANOUGH: In our respectful submission, you would come to no different conclusion. Each visa has different qualifying conditions but usually they are a matter of ancient history by the time a cancellation of a long‑term resident comes up. The label of the visa, in our respectful submission, cannot be regarded as an imperatively relevant matter.
GLEESON CJ: There seems to be a kind of underlying reluctance on the part of the majority in the Full Court to accept the proposition that absorption has nothing to do with alienage.
MR CAVANOUGH: There does seem to be such a reluctance.
GLEESON CJ: That seems to be regarded as still contestable.
MR CAVANOUGH: That seems to be so and yet our learned friends do not embrace ‑ ‑ ‑
GLEESON CJ: I should have thought it has been established clearly.
MR CAVANOUGH: Yes, your Honour, and we make those submissions in our written submissions and yet, with respect to the Full Court, there does seem to be a real hankering for what might have been the law at the time when the statute was in a different form and made pursuant to a different power.
GLEESON CJ: There are plenty of resident aliens in this community and in other communities who have been well and truly absorbed into the communities but who are aliens.
MR CAVANOUGH: Yes, and the cases this Court has had to deal with in recent years deal with some of those people. Mr Shaw had been here for many years, I think, arriving as a two‑year old. He was subject to cancellation under section 501. There is a decision of the Full Federal Court in relation to Mr Shaw. The majority upheld the cancellation. Justice Spender would have set it aside, but there it is. Your Honour the Chief Justice said in Te and Dang 212 CLR 162 at 176:
Treating absorption into the community as relevant to the status of alienage is inconsistent with earlier judicial views as to the width of par (xix) compared with par (xxvii), to which I have referred above. In my opinion, it is wrong in principle. For reasons already discussed, while absorption reflects the fact that an activity of immigration has come to an end, it may co‑exist, and commonly co‑exists, with a legal status of alienage. Resident aliens may be absorbed into the community, but they are still aliens.
This suggestion that the nature of each visa has to be considered should also be self‑considered against the background that this power is subject to the rules of natural justice so that the Minister is required to give a fair hearing and give fair notice of the matters that might be taken into account and to duly consider the representations. There is no suggestion that that was not done here, but to impose another obligation quite outside the natural justice obligations of taking specific note of and having regard to the label of the visa, in our respectful submission, is simply not justified by anything in the legislation or by any principle, and certainly not by constitutional principles. Our learned friends disown any suggestion that constitutional principles would require it in respect of long‑standing residents or in respect of holders of absorbed person visas.
Incidentally, I should make clear that not all absorbed persons hold absorbed person visas. It is only certain absorbed persons. We explain in our submissions how all that came about historically. It was really generated by a legislative mistake back in 1984 that had to be fixed up later to make sure that a particular category of persons did not wind up without any visa at all. It is a bit complicated and it is all set out in the submissions. It might be too tedious to take your Honours through it here now, but we do draw your Honours’ attention to it.
One might say why is it that this legislation implicitly requires the Minister to have regard in every case – and that is the submission now – in every case to the nature of the visa to be cancelled. Visas are ‑ ‑ ‑
GLEESON CJ: But is there some suggestion in the present case that the Minister had overlooked the fact of absorption? Is that what it is all about?
MR CAVANOUGH: It could hardly be said that the Minister overlooked the length of time that the person was here and the closeness of the person’s ties to Australia and the lack of ties with Sweden, because all of that is expressly dealt with in the Minister’s reasons. The most that can be said is that there was no reference to the word “absorption” or to the phrase “absorbed person visa”. That is as high as it can be put against us.
GLEESON CJ: Well, maybe the argument is that it would have concentrated the Minister’s mind on what is the essential merit of the respondent’s resistance to what you regard as repatriation.
MR CAVANOUGH: Well, perhaps, but it is a long step to say that in each and every case it is a jurisdictional error for a Minister not to ascertain the correct visa and take into account its nature and the qualifications for it. That is the argument that is put against us. Now, it is not suggested any more that an absorbed person visa was special in this regard, that the Minister was any more required to look at an absorbed person visa or take its nature into account than she was required to do so in respect of any other visa.
GLEESON CJ: What do you need to demonstrate to get an absorbed person visa, as distinct from the fact that you have been here for a long time?
MR CAVANOUGH: Well, as I say, the history shows that the section only exists to fix up a legislative mistake made 10 years earlier and to make that people in a very special category did not find themselves here illegally.
GLEESON CJ: I understand all of that, but if a person were to apply for an absorbed person’s visa, what would the person have to show?
MR CAVANOUGH: You cannot apply for them because they are ‑ ‑ ‑
GUMMOW J: You are given them by statute.
MR CAVANOUGH: ‑ ‑ ‑ given to them by statute and they were conferred by operation of law where the person satisfied paragraphs (a), (b), (c) and (d), on 2 April 1984 was in Australia, before that date had ceased to be an immigrant, on or after that date ‑ ‑ ‑
GLEESON CJ: Just a minute. It is the cessation of being an immigrant that is the counterpart of absorption.
MR CAVANOUGH: Yes, it is.
GLEESON CJ: That is why absorption is relevant to immigration and not to alienage because immigration is a process and alienage is a status and if you have been absorbed the process of immigration has come to an end. So to say that the person has ceased to be an immigrant in a context such as this is to say the person has been absorbed into the community.
MR CAVANOUGH: Yes, that is true.
GLEESON CJ: So I presume the suggestion is that if the Minister had directed her attention to the fact of absorption or the status of absorption or the circumstance of absorption, there was a practical possibility that she might have had a consideration to take into account in addition to whatever she did take into account.
MR CAVANOUGH: My learned friend has to go further and say that it is an implied limitation on the section 501(2) power that in each case, each and every case, the nature of the visa be identified and considered, and we say that is going much too far. As I say, any suggestion that absorbed person visas are special in that regard has been abandoned.
Now, it certainly would not be wrong for the Minister perhaps to notice that someone was the holder of an absorbed person visa, but it is another thing to say that unless the Minister does so the decision is invalid. Our learned friends have to show that there is an implicit legal requirement to take that matter into account on pain of jurisdictional error. In fact, in this case the Minister did give careful consideration to all of the facts that pertained to absorption. For instance, at page 38 of the appeal book paragraph 69 and 70 of the Minister’s reasons and there are also quotations in the submission to the Minister of letters from the applicant’s mother and the applicant’s sister together with summaries of what the applicant himself had said about his life history and his closeness of ties to Australia and lack of ties to Sweden. All of things that pertain to absorption were well and truly put to the Minister and taken into account, and the Minister did say she gave moderate weight to those considerations but in the end they were outweighed by the seriousness of the crimes. So, as a matter of fact, all of those matters were taken into account and were considered in this case, but we do make the submission that it is not an imperative obligation.
GLEESON CJ: What was his age when he was sent to prison?
MR CAVANOUGH: He was 16.
GLEESON CJ: What is the age at which he was released?
MR CAVANOUGH: He was sentenced to some seven years and it was, if I may say so, a very serious ‑ ‑ ‑
HEYDON J: Page 23 contains the list of convictions.
GLEESON CJ: Is it the case that he spent the whole of his adult life in prison?
MR CAVANOUGH: He has been to prison several times since. I think the calculation was that he spent 2½ years out.
GLEESON CJ: So most of his adult life he was in prison?
MR CAVANOUGH: Yes.
GLEESON CJ: We did have to look, in another case – I cannot remember which one now – at how the concept of absorption works when you are in custody.
MR CAVANOUGH: Yes. We conceded below that the applicant had been absorbed prior to 1984 he having spent a period of 10 years in the country as a child with his family, who were settlers here, without committing any offence. So it was that earlier period of 10 years before he committed any offence that was acknowledged by the Minister to confer on him, if you like, absorbed person status and the subsequent history did not move it. That concession was not made initially but it was ultimately made, I think, at Full Court level.
HAYNE J: Does 501F(3) bear upon this aspect of the argument?
MR CAVANOUGH: Yes, it does. We say that the obvious purpose of section 501F(3) is to relieve decision‑makers of the need to identify every visa and the need to ensure that once one visa is cancelled, all other visas are cancelled so that the person can be removed from Australia and Justice Emmett dealt with this at page 123, point 5 of the appeal book, we say correctly ‑ ‑ ‑
HAYNE J: What paragraph?
HEYDON J: Paragraph 48.
MR CAVANOUGH: Paragraph 48. His Honour says:
The intent of s 501F(3) is, at least in part, to ensure that, subject to the exceptions referred to, where the Minister decides to cancel one visa, the Minister does not need to consider the cancellation of other visas. The clear policy behind s 501F is that, if the Minister concludes that a person is not fit to retain a particular visa that would permit the person to remain in Australia, that person is not remain in Australia, simply because the person holds another visa. In the light of s 82(2) of the Act, it would ordinarily be the case that only one substantive visa is held. If the characteristics of another visa were different from those of a visa that the Minister purported to cancel, there may be some argument in support of a conclusion that the Minister should have regard to the consequences of the effect of s 501F. However, as I have said, in the present case, there is no difference in the substantive content of the two visas in question. There is no reason, therefore, for the Minister to have regard to the effect of s 501F.
HAYNE J: The argument against you, at least in part, seems to be, does it, that the Minister may not arrive at a result where she is taken to have decided to cancel another visa without specifically adverting to the existence and terms on which that other visa was granted.
MR CAVANOUGH: That is the argument against us. My learned friends have sought to make a virtue out of adversity, or whatever the phrase may be.
HAYNE J: That is what counsel are meant to do, Mr Cavanough.
MR CAVANOUGH: Yes, indeed, your Honour, and we say that really Justice Emmett is correct in identifying a quite different policy intent behind that section. As his Honour says, there is no room for any discretion on the part of the Minister in relation to the other visas. They are to be taken to have been cancelled and it is an odd thing to contemplate that the Minister should have to have regard to the nature of the visas, she has no discretion not to cancel. In our submissions at paragraph 25, our main submissions, we cite a passage from the decision of Justice Finn in Akpata v Minister to the same effect. That is all we would wish to say about the relevant considerations issue, if the Court pleases.
The third issue is the correct visa issue. I have taken the Court already to regulation 4 of the transitional regulations. There is no longer any dispute that the respondent had been granted a permanent entry permit and was the holder of it at the relevant time so, read in its literal terms, that regulation would have operated to grant a transitional permanent visa to the respondent and that is the visa that was identified in the submission to the Minister for consideration of cancellation, and which we say the Minister duly cancelled.
Now, the issue is whether section 34 of the Act somehow prevented the operation of that regulation in accordance with its terms. We submit that Parliament did not intend for section 34 to have that effect, that a finding along those lines would be inconsistent with the history of the provision and would give it a result so impractical that Parliament should not be taken to have intended it. The detailed history is elaborated at some length in both our written submissions and in our learned friends’ written submissions. Our learned friends do not, I think, take issue with our recitation of the steps. It is only the conclusions to be drawn from them that the parties differ on.
GUMMOW J: What was the source of the regulation‑making power?
MR CAVANOUGH: It was section 40(5) of the Migration Reform Act 1992, as amended. It provides the regulations may provide that from - it initially said 1 November 1993 but that was amended to 1 September 1994.
GUMMOW J: What section?
MR CAVANOUGH: Section 40(5) of the Migration Reform Act 1992 which is Act No 184 of 1992. Under the heading “Transitional” there are various provisions made for regulations to be made to cater for particular kinds of cases, persons and entry permits with a view to ensuring that when the reforms take effect there will not be a wholesale rendering illegal of groups of people.
HAYNE J: We see 40(5) gives a date at 1 November 1993.
MR CAVANOUGH: Yes.
HAYNE J: You said that was later changed somehow?
MR CAVANOUGH: Changed to 1 September 1994 by an amending provision.
HAYNE J: What was the amending provision?
MR CAVANOUGH: Could we advise your Honour that in due course. Again, it is not in dispute. I am sure that it is the case. Everything was delayed until 1 September 1994 because of the various complications and difficulties that all of this reform brought about. I think it might have been the 1994 amending Act that I just – I will ask my learned junior to see if we can find that particular provision.
GUMMOW J: It is section 40(6), is it?
MR CAVANOUGH: Subsection (5).
GUMMOW J: Yes, I see.
MR CAVANOUGH: The regulation was specifically authorised by that provision and not just by the ordinary regulation‑making power.
GUMMOW J: What do you say about paragraph 61 of your opponent’s submissions – 61 and following, really? They refer in paragraph 64 to some explanatory memoranda.
MR CAVANOUGH: Yes. They do but they have not put forward the explanatory statement of the transitional regulations.
GUMMOW J: Do we have that?
MR CAVANOUGH: I do not know what it says but as far as we are aware it does not assist my learned friends. My learned friend says it is consistent with the clear intention of the reforms being to move every non‑citizen to only one substantive visa. There is no doubt that the reforms were meant to move people to visas, in the usual case, one, but there is also no doubt that there were going to be cases of overlap where the cautious approach was required and that was to run the risk that there might be two identical visas, not just one.
My learned friend may be able to produce that explanatory statement but it is not included in the material that has been provided to us and it is not in the list of matters relied on. Could I take your Honours perhaps to our written submissions on this point which commence at page 14 with the heading, “The grant of an absorbed person visa did not preclude the simultaneous grant of a transitional (permanent) visa; and each is equally susceptible to cancellation”. We deal with the history from there on to say it is quite lengthy and complicated, but perhaps the most significant thing to take your Honours to is paragraphs 85 and 86 and the extract from the explanatory memorandum for the 1994 Act which was an Act that put the 1992 reforms into final form. If I could just invite the Court to read what is said there, particularly the highlighted parts. Larger extracts from that material are included in the material we have listed in our list of authorities.
My learned junior tells me that he believes that the Act that deferred the commencement of the reforms from 1 November 1993 to 1 September 1994 was the Migration Laws Amendment Act 1993, but we cannot check it immediately as it is not in anyone’s material. We will provide a note about that if we may. We cannot really I think improve on what we have said in the submissions about how this visa came to be. It is only in the Act as distinct from the regulations because of the belated change of approach indicated in our submissions.
Initially there was to be a section 14(3) of the Act which conferred an exception to the universal visa‑holding requirement. That needed to be in the Act because it was an exception to the general principle of the Act and it would not have been appropriate to have it in the regulations. But then that technique was belatedly abandoned and it was decided instead to give the people in this particular category a visa, namely the absorbed person visa, but it was convenient to do it in the Act at that late stage rather than to provide for the making of regulations to that effect. So we say there is nothing significant in the fact that the section 34(2) provision is in the Act, whereas the transitional permanent visa provisions are in the regulations, the regulations specifically authorised by the Act.
In any event, there is no contrariety, there is no inconsistency or repugnancy as between the regulations that provide for transitional permanent visas on the one hand and section 34(2) of the Act on the other hand. Both provide for the automatic grant, that is to say the grant by operation of law, of a permission to remain in Australia but not re‑enter Australia that is identical.
There might be more room for concern if one were talking about visas that were of a more common kind that one applies for and which are subject to conditions. For instance, there might be differing conditions in relation to two different visas and then there would be a cause for concern as to which one was operative or whether both were operative, and there might be a problem about complying with the conditions of two different visas if the conditions were different, but there is nothing like that here.
These are visas granted by operation of law to fix up particular problems or particular categories of cases, all envisaged by the package of reforms. There is simply no basis for reading down the operation of the transitional provisions regulations.
I will just take your Honours to one piece of extrinsic material that we say confirms all of this. It is in our materials. It is the EM for the Migration Legislation Amendment Bill 1994 and in particular paragraphs 22 and following. Your Honours will see on page 9 of that explanatory memorandum the heading “Section 26AB Absorbed person visas”. That was the previous number for this category. It was renumbered later.
Your Honours will see what the authors say in paragraph 23 about absorption and in 24 about problems caused by that doctrine. Paragraphs 25 and 26 are the paragraphs already extracted in our written submissions. It is perhaps useful also, if I may just impinge on the Court’s time a little longer on this, to look at the explanatory memorandum for the Migration Reform Bill 1992. My learned friends also refer to this, and two particular passages - on this particular point one passage – paragraph 10 on page 15 under the heading “Lawful Non‑Citizens”. It is the third dot point. That in turn takes you back to clause 16 of the Migration Laws Amendment Bill (No 2) 1992. As I say, it is all somewhat tedious, but it is all there.
HEYDON J: Sound submission.
MR CAVANOUGH: My learned friends seek to draw a distinction or to draw some comfort from the provisions of regulation 17 which deal with New Zealanders, but in my respectful submission, that does not assist them; in fact, quite the opposite. If one looks at regulation 17 of these transitional regulations of 1994, there is particular provision there made for New Zealand citizens who are in a special category, as our learned friends say, and interestingly, regulation 17(1)(c)(v) makes express reference to “an absorbed person visa”, whereas there is no corresponding reference in regulation 4. We say that assists our position.
The reason that that reference is there is because the New Zealanders were to get temporary permits, not permanent permits, whereas people in Mr Nystrom’s category were to get permanent visas, not temporary visas. In our submissions we set out the practical reasons why Parliament is unlikely to have intended that the grant of an absorbed person visa would prevent the grant of a transitional permanent visa, and I do not need to repeat them, but we do say that the respondent’s construction of section 34 really has nothing to recommend it in terms of convenience or practicality or anything else, save that it serves their forensic purposes in this case and really it would involve a great deal of inconvenience in requiring anyone who might have thought they were comfortably here to have to prove that they were absorbed persons as at a period long in the past, not an easy thing to do, when the far more convenient thing to do is to say, “I had an entry permit before 1994, therefore I have a transitional permanent visa”.
The last issue is the misdescription issue. If we are wrong about all of that, we say nevertheless there was no invalidity in the decision. We refer I think in the submissions to the test in the Project Blue Sky Case that is now adopted by this Court. On that test we say there is no reason to treat this misdescription, if that is what it was, as invalidating the decision. The permission being removed was a permission to remain permanently in Australia but not to re‑enter Australia, whatever it be labelled, so on that basis – relying by analogy at least with cases like Eastman that deal with misdescribing or misidentifying the power pursuant to which a decision is made, we say there is no good reason for inferring here that Parliament would have intended that this decision not operate merely because of a misdescription or a misidentification of the relevant visa.
It is true that the Federal Court has taken a different view in some cases. Schwart is the only Full Court case concerned, but in that case there was a difference between the visas. One was a five‑year resident return visa, the other was a permanent visa. We say that ‑ ‑ ‑
GUMMOW J: What is the citation of Schwart?
MR CAVANOUGH: It is unreported. It is in our submissions.
HEYDON J: [2003] FCAFC 229 at paragraph [33].
MR CAVANOUGH: Yes, if your Honour pleases. There are some single judge decisions since then which probably go wider and say that it is a jurisdictional error not to name the right visa. We simply say that those decisions are not correct and it ought not to be regarded as a jurisdictional error to nominate the wrong visa. There is no good reason for it and Schwart’s Case does not go so far as to establish that. On ordinary Project Blue Sky principles, it is not the appropriate analysis, in our respectful submission, a visa being no more than a permission, as section 29 says. If the Court pleases.
GLEESON CJ: Thank you, Mr Cavanough. Yes, Ms Mortimer.
MS MORTIMER: If the Court pleases, I will deal firstly by way of summary in response to my learned friend’s four points what our submissions are. In relation to the power issue, our submission is that the provisions in sections 200 and 201 do confer an immunity which operates to deem the power in 501 to be subject to a proviso. I will take the Court through how we put that argument. It depends fundamentally on the Court accepting our proposition that each of those powers deal with the same subject matter, which is exclusion from Australia. You can call them what you like and you can by statute confer different processes by which that object is to be achieved but, at the end of the day, the subject matter of them is exclusion and therefore, the principles that we have set out of statutory construction about specific versus general apply. That is in a nutshell the point on that issue.
Whether the Minister was obliged to take into account the nature of the visa ‑ that is the considerations argument. Now, we only get to that argument if this Court accepts what, in our submission, is an extraordinary proposition from the Minister under this legislative scheme which is that a person can hold two substantive visas. But if one gets to that position, then our submission is that the cancellation power, being a serious power that is designed to remove the right of the person to remain in Australia, if the person holds a right to remain in Australia by reason of another permission granted, then it follows, under this scheme, that the Minister ought be obliged to consider what that permission is. In our submission, that is what the Full Court decided.
The way it expressed its reasons in paragraph 17 of the majority judgment is, of course, by reference to the absorbed person visa because that, on its analysis, was the other visa under consideration here. But my learned friend is correct. Our argument is that the holding by a person of another substantive visa, where there are two substantive visas and the Minister decides to cancel one, the fact that the person holds another substantive visa is a relevant consideration under this Act. So we do put it as general proposition.
The weight to be given to that consideration and how the decision‑maker works out how much weight to give to the holding of that other visa will, of course, depend on the nature of the visa: how it was granted, why it was granted, all those kinds of matters. When one is dealing with an absorbed person visa, there may be special factors that go to that, but we put it at a more general level.
The third issue, whether the respondent held a transitional visa granted to him under the regulations. Our answer to that is that the respondent was granted only one visa by operation of section 34 of the Act and there is no reason, in the context of either the legislative scheme as a whole or the circumstances that led to the introduction of section 34 and the transitional regulations, to construe the respondent as having been given two visas.
If the Court pleases, this long and difficult argument that the Minister must make only arises because the Minister cancelled the transitional visa. She did not cancel an absorbed person visa because, as your Honours have heard, at that stage it was not conceded that the respondent held one. So my learned friend can talk about forensic purposes but there are forensic purposes that work on both sides of the Bar table in this case.
My learned friend needs, in our submission, to make good the argument about the holding of the transitional visa because otherwise he is in a situation where the Minister had cancelled a visa that the respondent did not have. In our submission, that gets us straight into orthodox Plaintiff S157 territory, that is that where a decision‑maker has a power to cancel a visa then it is a condition on that power that the visa that is cancelled is one that the person has.
To try and circumvent what we say is an orthodox application of Plaintiff S157 by the Federal Court in the line of authorities such as Johnson and Schwartz my learned friend encourages your Honours to look at this as an issue of misdescription. In our submission, it is not. It is not a case about misdescription or labelling. The correct characterisation of what happened is that the Minister cancelled a visa that this man did not have and when that is worked out, that is not a proper exercise of her jurisdiction. So that is our answer to the fourth issue.
Now, if I can start by going to the power question. If the Court pleases, as I have submitted, in our submission, when one strips back what is being done under section 200 and what is being done under section 501, they are both directed towards excluding a person from Australia – expelling, excluding a person from Australia. That is their subject matter. They certainly create different processes but, in our submission, when one looks even at some of the extrinsic material and at the way that these different powers have developed, they have developed in contemplation that the end in mind is the same, that you are going to remove somebody from Australia.
GUMMOW J: Do you agree that the underlying idea in these cases is repugnancy?
MS MORTIMER: Yes, your Honour, and we say that that is the point, that we do have a repugnancy here. We accept that if my learned friend can persuade your Honours that there is a different characterisation to be given to what is happening under these two powers, that they both go to exclusion, then we really do not get to first base because we do not get to them dealing with the same subject matter. But we say that when one is looking at that analysis, one needs to look at the substance of what is being done, not the form that has been adopted. In my submission, that is what my learned friend is encouraging the Court to do. He says they are two sources of power because the Act has identified two processes, but when one unbundles, in my submission, what is being done, they are both about expelling people from Australia.
HAYNE J: Can 501 be engaged in respect of a visa that would permit entry to Australia where the visa holder is, at the time of the decision, outside Australia?
MS MORTIMER: Yes.
HAYNE J: The congruence between the two provisions is not complete, at least to that extent.
MS MORTIMER: That is so, and it is also not complete in another sense because 501 deals with refusal of a visa.
HAYNE J: But 501(2), the cancellation provision, could empower a cancellation of a visa permitting entry where the visa holder is not, at the time of cancellation, in Australia.
MS MORTIMER: That is so, your Honour. To some extent that is our point, that 501 is a later, far more general provision, but when one unpicks what is being done, in the circumstance where there is a cancellation of a visa of a person in Australia, what you have is an intent to expel that person, which is what 200 is dealing with as well. The concept of deportation and removal really being about the same thing, to support that I want to take your Honours to one piece of extrinsic material and to one earlier incarnation in this legislative scheme, and the first is the explanatory memorandum to the Migration Reform Bill 1992 which is No 3 on our list of authorities. It is at paragraph 53. Your Honours have it and I do not, I am sorry.
HAYNE J: I do not have paragraph 53, I do not think.
GLEESON CJ: It is on page 10, which is only a couple of pages in.
MS MORTIMER: Yes, it is on page 10, if your Honour pleases. In my submission, when one reads paragraphs 53 and 54, what is evident is that the intention of both those powers is the same end, that it is talking about the possibility of them being done in different ways but what the explanatory memorandum says is that it is a change in terminology to reflect a distinction that is perceived to be based on deportation being a more serious sanction and removal being a less serious sanction, but what this extrinsic material reflects is that they are nothing more than a different use of terminology.
t35es
The second piece of material that I want to refer your Honours to is contained again in our list of authorities under the legislation given. It is No 4, the Migration Legislation Amendment Act 1989. That was one of the incarnations of this legislation that made the first statutory provision for the grant and refusal of visas, as opposed to permits, and extended the regime of visas into entry into Australia as well as travel. The relevant provision is section 17A.
The other thing that this legislation did for the first time was to introduce mandatory deportation of illegal entrants and, by section 8 of this Act, section 17A was introduced. Your Honours will see that when that is understood that is a duty to deport someone – and it uses the verb “deport” but it is not talking about conduct. It is not talking, in my submission, about the circumstance where the word “deportation” is usually used, which is that somebody has engaged in some kind of serious conduct which means that they have lost their right to stay in the country. It is not talking about that. It is talking about status. It imposes a duty to “deport” – it uses that verb – but links it with status, that is the status of being an illegal entrant.
If you carry that forward to the present scheme, in my submission, that, of course, is what removal under the present scheme is about. Removal is about loss of status and expulsion because of that. Under the present scheme deportation is about conduct and expulsion because of that. In my submission, what this provision shows clearly is that there is no fundamental kind of distinction between them other than one the Parliament chooses to make. What they are both dealing with is expelling somebody from Australia. The language that is used changes over time and it ought not, in our submission, to be indicative of what the subject matter of the power is.
HAYNE J: Is it implicit in that submission that 501 and its supporting provisions have as their central operation or their entire operation cancellation of visas in respect of persons in Australia at the time of cancellation?
MS MORTIMER: No, your Honour, I do not think I can submit on my reading of the provision at the moment that its exercise is confined to persons holding a visa who are in Australia, but if I might consider that over lunch because it might depend on ‑ ‑ ‑
HAYNE J: It seemed to me that much of your argument hinges about the proposition that both provisions are dealing with persons in Australia and their removal.
MS MORTIMER: It does.
HAYNE J: It is not evident to me that 501 and the associated provisions are hinged about presence in Australia at all.
MS MORTIMER: Your Honour, it is not possible on the language of 501 to submit that that is all it deals with, that is so, but, in my submission, that is really part of our argument. What we are saying about 501 is it is a subsequent broader and general provision. When you put it next to 200 and 201, you have an immediate repugnancy and an immediate contrast.
HAYNE J: Is that so where the subject of 501, namely visa, is a permission to enter or in most cases to remain in Australia? What is the repugnancy that you point to where the subject matter of 501 is dealing with the permission to remain in Australia?
MS MORTIMER: Your Honour, that is why I started this aspect of our submissions by saying that we accept it depends on how you characterise what the subject matter of the power is. In my submission, the subject matter of the cancellation power certainly includes, if it is not only, the exclusion and expulsion from Australia. That is the function that it is performing. This is, in my submission, not an unusual situation when one looks at the kinds of provisions that come up where the Anthony Hordern or R v Wallis kinds of principles are applied.
You have a provision like 201 which says if you engage in certain criminal conduct you are liable to deportation. It is a specific power specifically about criminal conduct. Then it says a person derives an immunity or a protection from expulsion or removal on that ground, on the ground of their criminal conduct, if they have been in Australia for more than 10 years. That is the limit that section 201 puts on the specific power to remove somebody from Australia because of their criminal conduct and it says you are protected from removal because of your criminal conduct if you have been in Australia for more than 10 years. The policy behind that is obvious, in our submission. It is expressed in the second reading speech of the then Minister, which is extracted in our submissions. It is intended to give security of residence.
It is a qualified protection which your Honours can contrast with section 203. Section 203 is another provision whose subject matter is removing people from Australia and it is not time limited. If a person commits the kinds of offences to which section 203 goes, then they derive no protection from residence in Australia for however long. They remain exposed to removal. But section 201 does confer that kind of protection and, in our submission, if that is the case, then it is not possible for the Minister to circumvent the protection given by section 201 by using 501 because, if the Court pleases, that is exactly, in our submission, in a practical sense, what is happening.
My learned friend offers no circumstance to the Court in which the protection that is conferred on people by section 201 will still avail them in a practical sense. That is, there is no situation, in our submission, that the Minister can point to where that protection still has any work to do on their construction, because on their construction you might not be able to deport a person like Mr Nystrom but you can always cancel his visa and remove him that way. So the entire, express, legislative intent of section 201 is removed. In my submission, that is a plain example of implied repeal.
My learned friend in his reply submissions says, “That’s not what we mean” but, in my submission, when you strip back what is happening in the exercise of a 501 power in these circumstances, what is happening is that the protection given to a person like Mr Nystrom is being circumvented.
GUMMOW J: Yes, that is right, but it is not just a question of protecting your client; it is a question of protecting the country. That is one of the things 501 is all about, is it not, with this notion of character grounds which are broader?
MS MORTIMER: Exactly, your Honour, I accept that. That is so, yes.
GUMMOW J: What is the rationale, from a legislative policy point of view, of cutting down this wider power in 501 which does not operate by reference to the same criteria simply?
MS MORTIMER: Your Honour, the rationale is that Parliament has turned its mind to what should be the approach of this scheme to people who have committed certain offences and yet have been in the community for more than 10 years and it has said, “If, by reason of those offences you could otherwise be banished, we’ve decided that because you’ve been here for 10 years, you can’t be”. That is a clear policy choice that the legislature has made in 1984 and maintained.
CRENNAN J: Taking the bad with the good.
MS MORTIMER: Exactly, your Honour, and that is the language in the second reading speech, that there comes a point at which you take the bad with the good in that category. The principles of all the cases that we have referred to in our written submissions and the additional case of Goodwin v Phillips, in our submission, are directly applicable in this circumstance. If the Minister had decided in this particular case that Mr Nystrom did not pass the character test for another reason, other than his criminal record, then we could not make the submission. The power is available and there is no specific power in the Act with a limit on it to which it would be repugnant. So we could not make the submission if the Minister had relied on other aspects of the character test in section 501, but all she relied on was Mr Nystrom’s criminal record, and it is that that creates the direction repugnancy.
Here you have a decision to expel somebody because of their criminal record and yet they have been in the country more than 10 years and it is precisely that limit on the removal power in section 200 that the Parliament contemplated. So if the Court pleases, this is not an argument that has as its practical consequence some kind of enormous immunity for people in Mr Nystrom’s situation from cancellation under 501. That is not the case at all but it is because of the sole reliance by the Minister on this man’s criminal record and the repugnancy that that created.
GUMMOW J: But the criteria for criminal record is not the same, is it? “Substantial criminal record” under 501(7) is not the same as the offence spoken of in 201, is it? M’Naghten mad people come within 501(7)(e), they do not come within 201, do they?
MS MORTIMER: Your Honour, 501(7)(a), (b) and (c) are co‑extensive and it is (d) and (e) that are not.
GUMMOW J: I agree with that, but I am saying they are not co‑extensive. The definition of “Substantial criminal record” for (7) is not co‑extensive with what is found in 201. It is broader.
MS MORTIMER: That is so, your Honour. Again, that might be a reason why, if Mr Nystrom were within (d) or (e), we could not make this argument. This argument, in our submission, is it is a construction argument and of course what it involves, on the authorities like Goodwin v Phillips, is not that you rewrite the broader or general power, but that you read it as subject to a proviso that takes account of the limitations that are found in another section or the specificity that is found in another section. That is our submission about the way it operates. It is not a submission that you must rewrite section 501 to incorporate the text of section 201.
What the authorities say is that as a matter of statutory construction you engage in a kind of a deeming exercise to reconcile that repugnancy. It is a limited reconciliation which in this case, in our submission, plainly inures for the benefit of Mr Nystrom and we accept that we could not make it if the Minister’s decision had been otherwise, or perhaps relied on section 501(7)(d) and (e).
My learned friend puts to the Court that we are precluded in this argument by this Court’s decision in Jia and its endorsement of the principles in Gunner. In our submission, that is not right, because those cases, as we have said in our written submissions, go to a different issue. They go to a circumstance where both powers were available. It is not a difference of fact that we rely on, it is a difference of power.
The argument that we make about a general provision not being able to override a specific provision with a protection in it was not available in those two cases because neither of the people concerned came within the protection of section 201. In our submission, with respect to our learned friends, the raising of the spectre of Jia and Gunner as an obstacle to this argument is misconceived because they deal with a different issue.
Now, I accept that Moran is on point. Moran is a very recent decision of his Honour Justice Ryan and we are compelled to submit that it is wrong. If we are right about this argument then that decision is wrong and your Honours, again with respect to Justice Ryan, will find no particular analysis of this argument in this decision. His Honour was persuaded that Jia and Gunner precluded it and it appears his Honour’s attention was not drawn to the fact that the power was not available in those two cases, that is the 201 protection was not available. The point of distinction that we rely on appears not to have been – if it was drawn to his Honour’s attention it was not fleshed out. If we are driven to it then we respectfully submit that decision is wrong.
Now, can I turn to the question of what visa the respondent held? It is not contested between the parties that in 1994 the substantial amendments made to this legislative scheme were designed as between the Act and the regulations to operate as a package to move all non-citizens into a visa regime. That is what they were designed to do. What the scheme did was that it created two kinds of visas, permanent and temporary, and then it provided for the creation of classes of visas in two ways: either by the Act, or through the regulations.
When it did that it imposed some limits on what could be done to visas that were created by the Act and it imposed a limit about what could be done in relation to a section 34 visa and if I could ask your Honours to turn to section 31 of the present Act? The summary I have just given your Honours really emerges from first section 30 so that the division about permission falls into two categories. There is the primary division in section 30 between temporary and permanent visas and then there is a division made by section 31 about classes. Section 31(3) prohibits the regulations from interfering with the criteria of some of the visas created by the Act itself. If support need be given to what is, in my submission, obvious ‑ ‑ ‑
GUMMOW J: Section 31?
MS MORTIMER: Section 31(3). Your Honour will see that says:
The regulations may prescribe criteria . . . but not by section 33, 34, 35 or 38).
In my submission, one of the things that this particular section is recognising is that the Act ‑ ‑ ‑
GUMMOW J: The primary provision, is it not, is 31(1)?
MS MORTIMER: Yes, your Honour.
GUMMOW J: And 31(2) says there are some that come from the statute itself and then (3) says the regulations may prescribe criteria for a specified class which include the regulation visas themselves, obviously, and also the regulations may provide criteria for some of the other statutory provisions.
MS MORTIMER: Yes, your Honour, but not others.
GUMMOW J: But not others, yes, so what comes from all of that?
MS MORTIMER: In my submission, a recognition by the Parliament that those visas are not to be interfered with by regulation. They operate on their terms as the terms are expressed in the Act, and they are to continue to operate that way. It is an example of the primacy, in our submission, that is given to a statutory visa, or to this statutory visa in particular.
GUMMOW J: Is not the idea that this - section 34 was a very politically sensitive matter, I suppose, and the legislature was anxious that the section 34 people were not to have their benefits as an absorbed person watered down by the Executive prescribing criteria pursuant to what the Executive might otherwise be doing under 31(3)?
MS MORTIMER: Your Honour, I accept that is a possible explanation. There is not sufficient discussion in the extrinsic material about why section 34 came to be, other than the stuff that my learned friend has taken you to, which really does not explain this, and therefore we are driven back to the text of the legislation. The text, in my submission, shows us that this is a visa that is intended by the Parliament not to be interfered with.
CRENNAN J: I suppose the other explanation is 34 contains the criteria, so on one view it is unnecessary for the criteria to be dealt with by the regulations.
MS MORTIMER: That is so, your Honour, and it is a visa that is granted by operation of the section at a fixed point in time. So it may well be that the Parliament thought it was incapable of alteration in a practical sense, in any event.
GUMMOW J: Well, 32, which is permitted within the permitted class, 32 itself contemplates regulations, does it not?
MS MORTIMER: Yes, it does, your Honour.
GUMMOW J: That is probably true of 36 as well.
MS MORTIMER: Yes, your Honour. So there is a hierarchy. Some of these visas firstly are created by the statute and then there is an express intention they not be interfered with by the regulations, and they are granted by operation of law. Section 34 is an example of that. Some of these categories are created by the statute entrenched to that extent, but Parliament contemplates that the Executive may alter the criteria - protection visas are an example of that – and they require an application.
Then there is an intermediate class of which section 33, the special purpose visas, is an example, where the class is created by statute and entrenched to that extent. It is a deemed visa. You do not have to apply for it, but the Executive decides when it is going to be triggered, because regulations must be made to bring somebody within it. Then there is the fourth group, which are visas that are only created by regulations.
HAYNE J: The prospect of regulatory alteration of criteria sits oddly with the scheme of 34, in particular 34(2). It says if criteria (a) to (d) are met, you are taken to have been granted, and there is really no scope for subsequent regulatory prescription of criteria.
MS MORTIMER: That is so, your Honour.
HAYNE J: But what is the next step that you take recognising that visas of the kind dealt with by 33, 34, 35 and 38 are treated separately and differently in 31(3) in relation to the regulation‑making power? What is the next step that is taken in the argument?
MS MORTIMER: Your Honour, the next step is the Act speaks. If you meet the criteria in section 34(2), you get that visa. On its terms that is plain and there is no basis, in our submission, to conceive that there was an intention that you would then need to go to the regulations to see if you got some other kind of visa.
HAYNE J: Need? You have to say, do you not, not only you do not need to go to the regulations but you may not?
MS MORTIMER: You may not.
HAYNE J: The regulations, though they purport to give you a visa, what, are beyond power, are not engaged? What is the ‑ ‑ ‑
MS MORTIMER: Are not engaged, are to be read subject to the Act. The Act speaks, the Act deals with the situation, and the regulations should be ‑ ‑ ‑
GUMMOW J: Wait a minute. You then have to read section 40 of the Act 184 of 1992, have you not? That is the statutory source of these transitional visas.
MS MORTIMER: Yes, it is, your Honour. That is the power to create those visas.
GUMMOW J: Yes, and you have to limit the power in some way – it may be possible to do it – by reference to sections 31 and 34 or the earlier equivalents of 31 and 34.
MS MORTIMER: Yes. As my learned friend ‑ ‑ ‑
GUMMOW J: The numbers have changed.
MS MORTIMER: The numbers have changed and 34 started off life in this very Act, your Honour - Act No 184 started off life in a different version. Perhaps I ought to take your Honours to that.
GUMMOW J: Yes, where is the ‑ ‑ ‑
MS MORTIMER: It is section 14.
GUMMOW J: We really have to read various portions of Act 184 of 1992 together.
MS MORTIMER: Yes, to understand how section 34 came into being. It is section 14 – I am sorry, it is section 7 of this Act which enacts section 14. It is headed “PART 2 – CONTROL OF ARRIVAL AND PRESENCE OF NON‑CITIZENS”. Do your Honours have that?
GUMMOW J: Yes.
MS MORTIMER: So the original way that it was contemplated absorbed persons would be dealt with is by an exemption from the visa scheme by the operation of section 14(3) by simply declaring them to ‑ ‑ ‑
GUMMOW J: They were being made lawful non-citizens.
MS MORTIMER: Yes, by just deeming them to be lawful non-citizens.
GUMMOW J: How does the language of section 40 as to who was being dealt with square with the language of section 14? Do you see what I mean?
MS MORTIMER: Yes, your Honour, and this is where it does become difficult to construe Parliament’s intention, because of course you have this Act and then you have a number of others which are enacted but do not come into force until one time.
HAYNE J: But for the moment leave that complication apart. Can we go step by step?
MS MORTIMER: Yes, if your Honour pleases.
HAYNE J: If we stay with section 40 as it stood in the 1992 Act, 40(5) which is relied on deals with, amongst other things, permits in a specified principal Act class, is that right?
MS MORTIMER: That is so, your Honour.
HAYNE J: Principal act class we identify from 40(1), do we, amongst other things as a class of visas or permits provided for by regulations under the principal Act?
MS MORTIMER: Yes, your Honour.
HAYNE J: Was Mr Nystrom’s permit that he had a permit of a kind provided for by regulations under the principal Act?
MS MORTIMER: No, your Honour, because all he had was that original entry permit when he arrived back in the country 27 days old.
HAYNE J: Was that not a permit provided for by regulations under the principal Act?
MS MORTIMER: Not under the regulations. No, I do not understand it to be.
GUMMOW J: What was it provided under?
MS MORTIMER: It was provided under section 6 of the 1973 Act.
HAYNE J: But does it follow that regardless of the other complications that you are itching to take us through that the permit he had is not a permit in a specified principal Act class and thus is not something with which 40(5) dealt?
GUMMOW J: This is not necessarily against you.
HAYNE J: There is no knife in this one, for once, Ms Mortimer.
MS MORTIMER: No, it is not.
GUMMOW J: It is not a hand grenade that is about to explode.
MS MORTIMER: In fact, I will gratefully accept anything that is handed down about this.
GUMMOW J: I do not know about that.
MS MORTIMER: Your Honour is correct and I am being cautious about my answer because I want to go back and check that what I understand to be the case is the case which is that ‑ ‑ ‑
GUMMOW J: About section 6?
MS MORTIMER: That the entry permit that your Honours will see in the appeal book that was stamped on Mr Nystrom’s incoming passenger card at appeal book12 ‑ ‑ ‑
HAYNE J: I understand – is that the whole universe of the permits with which we are here concerned, namely, the permit recorded by the stamp appearing at page 12?
MS MORTIMER: Yes, your Honour, in the good old days. To understand what that stamp meant, in a legal sense, one has to go to section 6 of the 1973 Act which is the only section in that Act that deals with entry permits.
GUMMOW J: Wait a minute.
MS MORTIMER: So that is the compilation Migration Act 1958 to 1973 and it is really section 6(2), your Honour.
GUMMOW J: Yes. The stamp is 6(3), I suppose – the language of the stamp?
MS MORTIMER: Yes, we must assume so, your Honour. That is right. If you were an immigrant then unless you had an entry permit you were a prohibited immigrant.
GUMMOW J: Yes, and liable to deportation under section 12, I think.
MS MORTIMER: Yes, your Honour.
GUMMOW J: No, not 12. There does not seem to have been a regulation system in force at the time of the 1973 Act.
MS MORTIMER: That is the point about which I would be grateful for some time to check but that is my understanding, your Honour. The permit system, as expressed in section 6 was not further elaborated in any regulations.
GUMMOW J: If you look at the regulation‑making power in section 67, I do not think it would have permitted the sort of scheme we have now of regulation visas or regulation permit.
MS MORTIMER: I accept that, your Honour.
HAYNE J: In looking at the problem that we are presently discussing, I would be glad to have your understanding of the consequences of 6(4) and, I think more relevantly, 6(8) of the Act as it stood in 1973, which is children under 16 years and notations in the passport.
MS MORTIMER: Your Honour, I can explain that now, I am relieved to be able to say. Section 6(8) in the present circumstances had no operation, although it might well have in other circumstances because Mr Nystrom, although he was only 27‑days old, came on his own passport, so he was not noted in his mother’s passport.
GUMMOW J: She got him a Swedish passport before they left.
MS MORTIMER: She did, your Honour, yes, that is right.
HAYNE J: So it was a 6(4) notation that might be expected to have been made, is it, or am I misreading that?
MS MORTIMER: I am not confident that 6(4) needed to be complied with in the circumstances, your Honour.
HAYNE J: Yes, I see.
MS MORTIMER: Certainly the permission, such as it was, derives from the power in 6(2) and was to be evidenced by the manner suggested in 6(3) which, as I presently understand it, is what your Honours see on page 12 of the appeal book.
GUMMOW J: The point has to be that at some stage after 1973 and before 1992 the principal Act was changed, the structure was changed, so as to provide for regulations and it was those regulation people ‑ ‑ ‑
MS MORTIMER: Yes, your Honour. My learned junior reminds me that is 1989 where one entered into a much more prescriptive regime about criteria.
GUMMOW J: So section 40 was talking probably about those people; it was not talking about your client.
MS MORTIMER: We would submit not, your Honour.
GUMMOW J: So your client under the 1992 system simply had the benefit of a statutory attribution of lawful non-citizenship given by section 14?
MS MORTIMER: Yes, your Honour, although that never came into force.
GUMMOW J: Yes, that is right.
HAYNE J: Then we are into – just before we launch into that little baroque curlicue on all of this, the regulation made in apparent reliance on 40(5) speaks of holders of permanent entry permits rather than of persons who entered under particular arrangements. It is at least theoretically possible that those who entered under the arrangements reflected in the 1973 Act later became, by some statutory or regulatory provision, the holder of a permanent entry permit. It would be important, I think, to the validity of this aspect of the argument to understand what happens between 1973 and the 1992 Act about who is or is not a holder of a permanent entry permit and, in particular, whether those holders were holders of a permit provided for by regulations under the Migration Act as it stood immediately before the Migration Reform Act 1992. Do you understand the problem that I grapple with?
MS MORTIMER: Yes, I accept that it is possible that although on its face a person in Mr Nystrom’s position does not appear to be within this, that subsequent regulations could have brought him within it. We will check that and I would hope that might be a matter that we could agree upon.
GUMMOW J: It is regulation 5, is it not, of the transitional ‑ ‑ ‑
MS MORTIMER: It is, your Honour, yes.
GUMMOW J: That seems to be provoked by something that happened in the structure between 1 September 1992 and 1 September 1994. Why is the critical date fixed on of 1 September 1992?
MS MORTIMER: I am sorry, which critical date, your Honour?
GUMMOW J: Regulation 5 of the ‑ ‑ ‑
MS MORTIMER: My learned junior tells me we ought to be in the universe of regulation 4. I think that is my learned friend’s position.
GUMMOW J: Sorry, I did not follow.
MS MORTIMER: That it is regulation 4 of the Migration Reform (Transitional Provisions) Regulations.
HEYDON J: Regulation 5 cannot apply because that is ‑ ‑ ‑
GUMMOW J: No, it will not work.
HEYDON J: ‑ ‑ ‑ people who went after 1 September 1992, which the respondent did not do, but he did enter before 1 September 1994, so regulation 4 could apply to him.
MS MORTIMER: Yes, that is right.
GUMMOW J: Anyhow, at the moment the stage we had reached, looking at regulation 4, your client was not the holder of any permanent entry permit. What he did have was the status of a lawful non‑citizen by virtue of section 14 of the 1992 Act, and somehow that has to change between 1992 and 1994 if there is to be any work done for him by regulation 4. Is that right?
MS MORTIMER: With respect, your Honour, perhaps not quite in the sense that the question is, if one looks at Act No 184, the 1992 legislation, on its face before it was fiddled with there were relevantly two ways of affecting Mr Nystrom’s status.
GUMMOW J: He would not need a visa if he is a lawful non-citizen.
MS MORTIMER: That is so, your Honour. So in the Act itself this version of it contemplates that a class of people will be exempted from visas and will be declared to be lawful non-citizens. Mr Nystrom, on our submission, plainly fits within that. That never came into force but in the same set of amendments what was created was a regulation‑making power to bring another class of people across from the old regime into the new regime.
GUMMOW J: Just before you do that, sections 24 and following as they were put in by section 10 of the Act 184, that is where we find the genesis of section 34, is it not?
MS MORTIMER: No, your Honour, this is the complicated bit. The genesis of section 34 comes from a change, section 14(3). You start there and you have reflected in this text an intention by the Parliament that absorbed persons will just be declared lawful non-citizens, they will not need a visa. That intention changes before these things come into force.
GUMMOW J: I am sorry, I took you off your course.
MS MORTIMER: No, your Honour, it is very difficult.
GUMMOW J: As Justice Hayne has been saying, we have to look at what happened next.
MS MORTIMER: Yes, your Honour, because on this ‑ ‑ ‑
GUMMOW J: What happened next to 14(3)?
MS MORTIMER: On the face of this Act Mr Nystrom is brought within 14(3) and on the face of this Act, according to the evidence, he is not going to be within that regulation‑making power in section 40(5).
GUMMOW J: Yes, that is right.
MS MORTIMER: So to track what then happens one needs to look at what became of 14(3). For that purpose, we will need to go to the Migration Legislation Amendment Act 1994, Act No 60. It is by section 8 of that Act. So, in a nutshell, if the Court pleases, what is happening during these two years is Parliament is furiously making and amending and making changes to a package of reforms that had not come into effect. So we have two years where there is a sequence of pieces of legislation which reflect changes in Parliament’s view about what the new scheme ought to look like until eventually Parliament decides, “Yes, all right, we are here now, and it comes into force in 1994”. This is one of those changes. It is by section 8, your Honours will see, that three classes of statutory visas are created which your Honours will find in the present scheme. It is section 26AB that is the absorbed person visa. The criteria remain the same.
GUMMOW J: But it is not granted by regulation.
MS MORTIMER: It is not granted by regulation. It becomes a visa granted by operation of law. The inference, if the Court pleases, between the presence of these criteria in 14(3) and these criteria in a visa is simply that Parliament changed its mind rather than having a set of people who were going to be deemed to lawful non‑citizens and outside the visa regime.
GUMMOW J: But what happened to section 14? What happened in the Act 60 of 1994 to section 14 of Act 184 of 1992?
MS MORTIMER: Subsection (3) was repealed by section 5 of this legislation, section 5 of Act No 60, 5(b).
GUMMOW J: Yes, thank you. What, if anything, happened in Act 60 of 1994 to the regulation‑making power previously found in section 40 of Act 184, if anything, because the regulations are not made until 1994?
MS MORTIMER: Your Honour, I am not aware of any material change or even any change.
HAYNE J: Schedule 2 to the Act No 60 of 1994 are the amendments of the Migration Reform Act 1992.
GUMMOW J: It is a new transitional section, is it not?
MS MORTIMER: Your Honour, I do not understand the regulation‑making power in section 40 to have been altered by these amendments.
GUMMOW J: Can we just check that there was no change made to section 40?
MS MORTIMER: I withdraw that, and I am grateful to my learned junior. If your Honours look at schedule 2, clause 3, it says:
After subsection 40(1):
Insert –
I am in the invidious position, if the Court pleases, of not having the page that follows that, so I cannot complete the sentence.
HAYNE J: Items 3 to 8, I think, of schedule 2 of Act No 60 of 1994 have, I think, to be at least looked at. Whether they matter, I do not know.
MS MORTIMER: Your Honour, we will look at that over lunch.
GUMMOW J: What seems not to have happened is a change to the definition of “Principal Act class”, but that had better be checked.
MS MORTIMER: And it would only be a change to that definition that would be material.
GUMMOW J: “Principal Act class” is linked to regulations.
GLEESON CJ: Is that a convenient time, Ms Mortimer?
MS MORTIMER: If your Honour pleases.
GLEESON CJ: We will adjourn until 2.15.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.17 PM:
GLEESON CJ: Yes, Ms Mortimer.
MS MORTIMER: Your Honour, my learned friend, Mr Cavanough, would like to supply an answer to your Honour Justices Gummow and Hayne’s question about the regulations.
MR CAVANOUGH: I am grateful to my learned friend for giving me a moment. If I could hand up copies of an extract from schedule 2 of the Migration Legislation Amendment Act No 60 of 1994 and, in particular, item 3 of that schedule.
GUMMOW J: We have that.
MR CAVANOUGH: Someone picked up this problem just in time it seems, in 1994, your Honours. It speaks for itself I think really but it ‑ ‑ ‑
GUMMOW J: I am not sure if it speaks for itself.
MR CAVANOUGH: It provides, as your Honours can see, that for the purposes of the definition of “Principal Act class” in the Migration Reform Act:
permits granted before 19 December 1989 are taken to be a class of permits provided for by regulations under the Principal Act –
and that is this case. There is also another minor amendment your Honours will see in item 4:
Omit “force”, substitute “effect”.
That, I see, has been reflected in the form of the regulation itself also. It uses the word “effect” rather “force” in the appropriate place. We have found that explanatory statement for the Transitional Regulations and we can hand that up in due course, if the Court desires to see it. If the Court pleases.
MS MORTIMER: Just on that issue, if the Court pleases, I understand that what my learned friend is putting to the Court is that when that particular amendment is read with the rest of section 40(5) that subsection authorises regulation 4. That is what I understand to be the submission. If the Court pleases, we would seek time to consider whether we are content to concede that the regulation is valid.
GLEESON CJ: You can put in a note within seven days about that, Ms Mortimer.
MS MORTIMER: If the Court pleases. The remainder of the submissions that I will address the Court on in relation to whether Mr Nystrom held one or two visas will proceed on the assumption that that regulation is within power, so for the rest of the argument I will assume that to be the case. What we say, if the Court pleases, is that there are really two reasons why the visa granted by the Act, the section 34 visa, ought prevail and regulation 4 ought be read down or be said to be ineffective.
Now, those two reasons are, firstly, that the regulation is a general regulation and so it is an argument that is really the same as we put on the power issue. It is an argument that was articulated by the Full Court in this case at paragraph 14. That is the majority judgment, paragraph 14, at appeal book 112. Your Honours will recall the approach the Full Court took was to consider the arguments about whether one visa or two visas were held but in the end resolved at paragraph 15 that it did not need to decide that issue. The argument in relation to the specific statutory visa prevailing over something general that might have been granted under the regulations is the argument that is recited in paragraph 14. So that is the first reason. We say here you have a specific statutory visa. It is plain on its terms. It operates on its terms. It has effect by operation of the statute. It gives the man a visa. To that extent, it ought prevail over any general provision in the Act that is intended to mop up other people.
The second reason that, in our submission, the regulations ought be read down or be read as ineffective in Mr Nystrom’s case is that the argument the Minister makes flies in the face of the entire scheme of this legislation. The scheme of this legislation, in our submission, is that a non‑citizen will have one substantive permission at a time in relation to entry, travel and remaining. The best expression of that is found in section 82(2) of the Act, if I can ask your Honours to go to that. That, in our submission, is the principal expression of the legislature’s intent in this scheme, that in relation to a substantive visa a person will only have one. There is only one nominated exception to that and that is a special purpose visa.
GUMMOW J: There is a definition of “substantive visa” in section 5.
MS MORTIMER: There is, yes, your Honour.
GUMMOW J: This visa under the regulations, would that be a substantive visa?
MS MORTIMER: Yes, your Honour, it is. The exception in relation to special purpose ‑ ‑ ‑
GUMMOW J: It is said against you that does not cope with the situation where both happened at the same instant of time.
MS MORTIMER: No, of course not, your Honour. In terms ‑ ‑ ‑
GUMMOW J: Because of the 1 September situation.
MS MORTIMER: It would be an easy answer for us, your Honour, if section 82(2) applied in terms. It does not and we do not use it for that purpose. We use it for the purpose of demonstrating that that is the scheme. The scheme of the Act is that a person will have one permission, one substantive permission and one substantive permission only. What flows from that ‑ ‑ ‑
GUMMOW J: Well, wait a minute. Is the consequence of what you are saying about 82(2) that the regulation‑making power had to be read subject to 82(2)? In other words, the regulation‑making power could not be used to achieve a result whereby that transitional visa came into effect.
MS MORTIMER: Yes, your Honour, which is another way of stating the submission that it ought to be read down. So if that is what the regulation‑making power was used to do, it would be ineffective because that would be contrary to the scheme the Act creates, and the scheme the Act creates is that, unless you are dealing with a special purpose visa, there is no other circumstance in which it is contemplated that a non‑citizen will have two substantive visas.
GUMMOW J: But the trouble with 82(2) is – and that scenario - which comes first? That would produce the result that you lost your absorbed person’s visa, would it not, and what you were left with was the transitional one?
MS MORTIMER: No, your Honour, that is why we submit that 82(2) in its terms does not apply to this present situation, because they both notionally came into effect at the same time because of the way the amendments were introduced. Although one can track the introduction of section 34 to a period in time prior to the regulations, the way that this package was introduced was that it was introduced as a package at one time, so that we cannot rely on section 82(2), and I take your Honour’s point that it might not help us even if we could, but we cannot rely on it in its terms and we can rely on it only as demonstrating what the scheme is about and therefore how you look at – how you approach the regulation‑making power.
In our submission, there is no other circumstance that the appellant can point to or has pointed to where a person, under this scheme, gets two substantive visas, so the proposition that the Minister wants to rely on is an anomalous proposition under this scheme completely.
HAYNE J: He points to 501F(3), does he not, as some indication of the possibility of holding more than one visa?
MS MORTIMER: Yes, and I want to come to that right now, your Honour, and make two submissions about it. The first is that 501F(3) was not in the Act in 1994 so it postdates it and, in terms of construing what the scheme was about when this regulation in section 34 came in, it was not present, but, in our submission, section 501F3 has a different operation from the one that the appellant relies on.
It was, in our submission, correctly characterised by Justice Finn in Akpata, and I think that is on my learned friend’s list of authorities or in his submissions, as a machinery provision and I propose to use the facts of Akpata to demonstrate the point, but before I do that, I make this submission. Section 501 itself, and therefore 501F, apply in two circumstances, refusal to grant a visa and cancellation of a visa, so that the way that the deeming provisions operate, in section 501F, in my submission, has to be understood in that context. It is not just operating on cancellation. They are deeming provisions that operate in relation to refusal to grant. That is the situation in Akpata. What you had there was a refusal to grant a visa on character grounds and that individual held a bridging visa.
Your Honours, by now I am sure are familiar with that concept, a bridging visa is not a substantive visa, it is a temporary visa designed to preserve a person’s status in Australia while they are trying to secure a substantive visa.
GUMMOW J: It is often issued when there are pending court proceedings.
MS MORTIMER: Yes, your Honour, because people are otherwise unlawful.
GUMMOW J: Yes.
MS MORTIMER: In that context, if one bears that kind of factual situation in mind, in my submission, section 501F(3) has an obvious operation, that is if the person holds another visa.
We put some emphasis on the word “another”. It does not mean necessarily a second substantive visa. It just means a visa other than the one that is being considered for refusal or cancellation.
GUMMOW J: A bridging visa would not be a substantive visa.
MS MORTIMER: No, your Honour. So if the person holds another visa in the situation that I am positing, a bridging visa and it does not fit within (b), then the Minister is taken to have decided to cancel that other visa. In the Akpata situation, the need within the scheme for that machinery provision is obvious. There is a decision to refuse to grant a visa on character grounds. That is, it is a decision that this person ought be excluded from Australia.
To give effect to that one has to cancel the bridging visa because he otherwise still has an entitlement to be here. So in order to give effect to the primary decision, which is to refuse to grant on character grounds and exclude, what the scheme of the Act does is it deems whatever other temporary permission generally is permitting him to be here to go as well. So that the substantive intent of the exercise of the power, that is, “We want to exclude you from this country”, is facilitated. So, in my submission, that is the plain operation that is to be given to section 501F(3). There are no other circumstances that one can identify from the scheme where it could operate on a substantive visa. The Minister has identified none and we can identify none, so it has a much more confined and obviously practical operation.
One of the other provisions that is relied on is section 15 of the Act. The first submission to make about that is that it is for the avoidance of doubt, although it is difficult to see what doubt attends sections 13 and 14. They are fairly clear on their face. But it has again, in my submission, a much more limited operation than the appellant contends for and it really just says that unless a person immediately gets another visa, the person becomes unlawful and the detention regime applies. That is its sphere of operation. It is to avoid doubt in the circumstance of making it plain that you will be liable to be detained as an unlawful non‑citizen unless immediately you are granted another visa.
Again, the obvious circumstance in which that operates is where a person has a substantive visa which is cancelled and they immediately are given a bridging visa to preserve their status so that they can challenge their cancellation. In our submission, the terms of section 15 properly understood do not assist the appellant’s construction either and therefore we submit it is plain beyond argument that this is a legislative scheme about one substantive permission at a time and that that informs the regulation‑making power and the scope of it.
HAYNE J: To test that, is there any circumstance in which sections 34 and 35 could both be engaged? My first impression is that though the facts may be rare, distinctly unusual, 34 and 35 could both work according to their terms, but I may be wrong, depending on when a person ceased to be an Australian citizen.
MS MORTIMER: Yes, your Honour. To answer that, one would have to understand the circumstances in which a person ceases to be an Australian citizen better than I do as I stand here before the Court. So, your Honour, I cannot assist you in terms of ‑ ‑ ‑
HAYNE J: Am I right to understand the premise for your arguments to be that there is a discernable – what, you describe it as a statutory scheme – a discernable pattern emerging from the Act that leads to a conclusion one substantive visa at a time?
MS MORTIMER: Yes, your Honour. As best we can, we have worked through the Act and not been able to come up with a circumstance other than the one that the appellant asserts is created in this particular case. I have made a submission about the forensic purposes for which the appellant needs to make that point. Other than that, we have not been able to find a circumstance where the Act expressly contemplates the granting of two substantive visas.
If it would be of assistance, we will include in that note, if the Court pleases, a more complete analysis about the operation of section 35 and whether it is possible to have the same, if that would assist the Court. I do not propose to make any further submissions about what we have described in our written submissions as the correct visa issue. That is all I propose to say about that.
I want to turn now to the jurisdictional issue, that is, what is the consequence on either of the two scenarios for the validity of the Minister’s decision in this case. The first scenario is that the respondent held only one visa and that was a section 34 visa. On that – and we have set this out in our written submissions – our submission is that a plain application of Plaintiff S157 results in there having been jurisdictional error because the power to cancel is conditioned upon cancelling a visa that a person holds. That is the point that is made by Schwart in the Full Court at paragraphs 33 to 34 and also by his Honour Justice French in Johnson, and we have referred to those in our written submissions. It is also the proposition that is relied on by the majority in this case in the Full Court at paragraph 16.
Otherwise, if that were not the case, then, in our submission, the cancellation power would be so unconfined as to be capable of exercise in a capricious manner. Our submission is that if you have a permission, the scheme gives a cascade of rights that are conditioned upon that permission and it is a detailed scheme that enables conscious and deliberate revoking of that permission only in circumscribed circumstances. If that is the case, in our submission, the decision‑maker has to understand and turn his or her mind to what is the permission that they are cancelling. That is, they have to correctly identify the permission that has been cancelled. So that is on the first scenario, if the Court pleases. If the respondent only held one visa, we say it is a fairly straightforward application of Plaintiff S157.
If the respondent held two substantive visas ‑ that is the appellant’s scenario ‑ then it is only at that point that one comes to the argument or the proposition that found favour with the majority in the Full Court of a relevant consideration, that is the nature of the second visa held being a relevant consideration. Really what we say about that is set out in paragraph 76 of our written submissions. It is that if you look at the scope, subject matter and purpose of this legislation the discretionary exercise of power to expel is heavily circumscribed. The consequences are serious. It requires a conscious decision and, in our submission, the decision‑maker needs to understand what is being revoked and how and why the permission came to be granted in the first place.
HEYDON J: How would it feed into the reasoning process in this case of the decision‑maker of the Minister?
MS MORTIMER: Your Honour, it feeds in in the way that the majority in the Full Court described it, which is at paragraph 19 of their reasons. In this case it required consideration of what an absorbed person visa was, who came to get it, what protections it gave people. Now, that is the interrelationship with deportation and the protection from deportation and it may be that – no, I withdraw that – the content of the consideration is going to vary depending on what the other visa is. Now again, in my submission, we are really in artificial territory here because we are positing a circumstance that we say cannot happen under the Act but ‑ ‑ ‑
HAYNE J: Understanding that ‑ ‑ ‑
MS MORTIMER: Understanding that if ‑ ‑ ‑
HAYNE J: ‑ ‑ ‑ in the particular circumstances of the asserted two visas what consideration was it that the Minister should have but did not take account of?
MS MORTIMER: That the respondent held an absorbed person visa.
HEYDON J: What difference does it – if you have a person who has failed the character test in the way that the respondent did how does it matter to the Minister’s reasoning process whether it was one visa or the other?
MS MORTIMER: Your Honour, this argument proceeds on the basis that the visa that was being cancelled was the transitional, the regulation visa and that at the same time Mr Nystrom held an absorbed person visa and the Minister was required to consider the fact that he held that visa and the nature of it before she could exercise the cancellation power of the visa that she did cancel.
HEYDON J: She considered various facts that underlay the existence of an absorbed person visa. She knew, or the officer knew, the history of the respondent’s life.
MS MORTIMER: Your Honour, in my submission, that is sheer coincidence. When the Minister ‑ ‑ ‑
HEYDON J: Maybe, but there has to be some materiality to the point, has there not, to succeed in your argument?
MS MORTIMER: Your Honour, not if it is a relevant consideration. That is, it might be that the appellant can by happenstance, because this happens to be an absorbed person visa, point to parts of the reasons where there are co‑extensive factors that apply, that he has been in Australia for a long time, that he has family here, but that is sheer coincidence because in this case the Minister firstly denied in a legal sense but also plainly on the evidence did not turn her mind to the fact that he held a second visa and that it was an absorbed person visa.
GUMMOW J: To take up what Justice Hayne was putting to you, the consideration appears in Peko-Wallsend 162 CLR at 40:
Not every consideration that a decision-maker is bound to take into account –
and here you have to find it by implication -
but fails to take into account will justify the court setting aside the impugned decision . . . A factor might be so insignificant that the failure to take it into account could not have materially affected the decision –
How does this case of overlap, to put it that way ‑ overlapping visas ‑ fit with that?
MS MORTIMER: In my submission ‑ ‑ ‑
GUMMOW J: In 162 CLR 24 at 40.
MS MORTIMER: Yes, your Honour. In my submission, what was material about the consideration of the nature of an absorbed person visa was firstly that it was granted by – it was entrenched and it was only available to the applicant because of a whole set of circumstances and, although the Minister may have referred to some of those, that is, his family or whatever, the fact that the Act under which he was deciding to cancel the visa had also given him an entrenched status was not something that she turned her mind to.
GUMMOW J: But you get this word “entrenched”.
MS MORTIMER: Because it is a deemed visa, your Honour, and the history of it shows that it was only given to people who met the absorption criteria.
HEYDON J: Rights were the same, and the means by which the visas could be terminated were the same and paragraph 19 to which you directed attention, the Full Court seemed to drift off into discussion of the protections given by section 201. Now, I understand your argument about 201 compared to 501, but that seems to be moving back into another subject. It seems to be strictly irrelevant to this one, or at least if your argument on that failed, then the rest of paragraph 19 would have to be searched for some independent support.
MS MORTIMER: Your Honour, I understand what their Honours are saying in paragraph 19 to be a reference to the fact that at earlier stages in the incarnation of this legislation, if you were not an immigrant, you could not be deported, so that absorption in an earlier incarnation gave you some immunity, and I understand that is why their Honours refer to those powers.
HEYDON J: That might be a reasonable thing to do at an earlier point in time, but how does it bear on the present question?
MS MORTIMER: Because the consideration of that aspect of the scheme and how one comes to be absorbed and fall out of the category of an immigrant informs why absorbed people do hold a special position and that the scheme recognises that. It not only gives them a visa by operation of law; it has in the past exempted them from disadvantageous aspects of the Act.
HEYDON J: Not now, assuming your first argument.
MS MORTIMER: Assuming our first argument is wrong, not now, your Honour, I accept that.
HEYDON J: …..is what fresh argument could be put on behalf of the respondent to the Minister if for example you succeeded in this appeal or alternatively if the point had been taken before the Minister, if someone had said, “Look, there is this visa and there is that visa, I want to argue this”, what material argument could have been advanced?
MS MORTIMER: Your Honour, it only relates to the special nature of being an absorbed person, and I cannot put it any higher than that. Now, in a lot of things that the Minister considered about that which had to do with how long you had been here, what your family ties were, those sorts of things, do overlap, I accept that. I have to accept that. So if we have a weak point, I accept it is in that second limb of the Peko‑Wallsend test in establishing that the – I withdraw that. The consideration is material – the nature of the visa is material, that is our primary submission, but on the facts of this case I am not able to point the Court to a great deal of substantive difference about what would have been said on behalf of this particular respondent, that is so.
GUMMOW J: Section 82 came into the Act with this same statute 184 of 1992, did it?
MS MORTIMER: Yes, your Honour, so it was, in our submission, a principal aspect of the reform package.
GUMMOW J: What was it then numbered, do you know?
MS MORTIMER: It was 26ZW, your Honour.
GUMMOW J: It was then amended by Act 60 of 1994. What did that do to it, do you know?
MS MORTIMER: Yes, by the insertion of the reference to “special purpose visas”. If your Honour looks at the way it was originally expressed in 26ZW, subsection (2) simply says a visa held by a non-citizen ceases to be in force if another visa for the non-citizen comes into force and then once the special purpose category was created – if I could just perhaps briefly make a submission about that category.
That category of visa is the intermediate one that I spoke of where it is a deemed visa, takes effect by operation of the Act, but there has to be an Executive decision to prescribe class and, in my submission, it is the extrinsic material – I will give your Honours a reference to that in a moment – demonstrates that it is designed to come into effect where there is an emergency, for example, the Kosovo situation we understand to be one that was dealt with under special purpose visas, so situations where Parliament might not otherwise want to interfere with what somebody is holding.
For example, if somebody is here on a visitor visa, a substantive visa, that allows them to come and go but stay no longer than a month at each time, and something terrible happens in their country of origin, tsunami or something, and they cannot go back, the government creates a special purpose visa to enable them to stay but otherwise does not want to interfere with the visa they regularly got to come and go as they please. That, in our submission, is how the exception in section 82(2) is designed to work so aside from that specific kind of emergency situation where you might want one substantive visa to operate at the same time as somebody holding another one, there is no other situation the Act contemplates where that will occur.
If the Court pleases, there is just four brief points that I want to return to in relation to the power issue. A couple of them I forgot in answer to what my learned friend submitted. The first one I want to come back to is your Honour Justice Hayne’s point about section 501 extending to cancel a visa of someone that is not in Australia. Just to deal with that, in our submission, firstly it is important to recall that the present system deals with permission to travel to Australia, to enter and to remain. So, in our submission, cancellation of a visa of somebody who is outside Australia but wanting to travel to and enter Australia is still exclusion. So you come back to the same point. It is still exclusion that is the subject matter of the power.
In our submission, that is made good by the way the High Court in Robtelmes v Brenan (1906) 4 CLR 395– and that is not on our list of authorities, your Honours. At the top of page 403 the Chief Justice endorsed a statement from a decision of the United States Supreme Court which characterised the right of a nation in two ways but said that they rested on the same ground, that is:
“The right of a nation to expel or deport foreigners, who have not been naturalized or taken any steps towards becoming citizens of the country, rests upon the same grounds, and is as absolute and unqualified as the right to prohibit and prevent their entrance into the country.”
So that one can talk about exclusion in a narrow sense, meaning preventing someone from entering, or in a wider sense that includes the concept of expulsion. But they rest, in our submission, on the same sovereign rights and that is the subject matter of this Act, whether you are doing it by refusing someone permission to come here or whether you are doing it by removing the permission of somebody that is already here. It is the same subject matter.
There is no doubt, in our submission, that that is what the Minister was doing in this case because at appeal book 38, paragraph 67 of her reasons for decision, the Minister says:
I believe that the Australian community would expect Mr Nystrom’s visa to be cancelled and him to be removed from Australia.
Again, your Honours, our submission is that the Act might direct different processes but when you strip it back, it is the same piece of conduct.
The final point I want to make back on the power issue is my learned friend’s reliance on section 499(1A) of the Act. I think your Honour Justice Gummow might have pointed that out to my learned friend.
The proposition is that that section supports the notion that these are intended to operate entirely independently of each other and for the specific power in sections 200 and 201 not to constrain 501. In our submission, the text of that subsection would assist if the last words were not there, “in circumstances where both powers apply”. With those words, in our submission, it assists our argument. If the Court pleases, those are the submissions on behalf of the respondent.
GLEESON CJ: Thank you, Ms Mortimer. Yes, Mr Cavanough.
MR CAVANOUGH: Just as to that, your Honour, there would be no occasion for a choice if both powers did not apply. Can I just go back to the first issue – and some learned submissions on that briefly. We submit that it cannot be right that section 501 is to be read down in this specific way that my learned friend invites the Court to do. She really invites the Court to cherry pick that part of the provisions of Division 9 of Part 2 that suit her case without any justification for cherry picking particular cherries and not others.
There are a series of limitations on the powers of deportation under section 200. They appear from sections 201, 202, 203 and 204. Why pick on just the 10‑year rule? My learned friend in that connection says had the Minister chosen to administer 501 in this case in a different way by not lighting on the failure of the automatic part of the character test then she would have no complaint but how can that really stand. Is it really different if the Minister says, “Well, I’ll just have a broad look at this person’s background and priors and I won’t do the sums but I’ll take the view that the person is someone who hasn’t satisfied me that they pass the character test, say, on the general conduct or the general criminal conduct criteria.” If one does it that way one survives but if one says, “Well, I see that there has been criminal convictions of a kind that are also referred to in section 201 my power doesn’t exist.” That cannot be right.
It is noteworthy that there is in section 501, in the character test in subsection (7) paragraphs (a), (b) and (c), repetition of the very provisions or criteria that appear also in section 201, and some additional grounds or criteria that can be looked at. It just cannot be right to say that the powers under section 501 are not exercisable when those very offences carrying those very sentences have been committed. It would be just applying the face of the provisions of the section itself. In relation to the debate over one visa or two, my learned friend advances no reason, if the truth is there can only be one visa, for picking the absorbed person visa over the transitional permanent visa.
GUMMOW J: Can we just look at the text of regulation 4 again?
MR CAVANOUGH: Yes.
GUMMOW J: Which you rather tactfully tended to glide over.
MR CAVANOUGH: Yes, your Honour.
GUMMOW J:
if, immediately before 1 September 1994, a non-citizen was in Australia as the holder of a permanent entry permit, that entry permit –
subject to 82(2) where applicable would not always be applicable because there would not be a substantive visa always – that entry permit, subject to 82(2) continues in effect on and after “as a transitional”. In other words, why would you read 4 as doing work of duplication where the duplication was not necessary?
MR CAVANOUGH: Because this provision which was ‑ ‑ ‑
GUMMOW J: It was not necessarily because of something in the Act – the same Act actually, the same Act that contained the regulation‑making power.
MR CAVANOUGH: Yes, the same Act that contained the regulation‑making power under which this was made and, as the material confirms, the idea was to make things as clear as possible from 1 September ‑ ‑ ‑
GUMMOW J: They have not made them as clear as possible.
MR CAVANOUGH: Nothing is as clear as we would like it to be, your Honour, but the situation would be intolerable if my learned friend’s submissions were accepted in relation to this because everybody who might be an absorbed person of the kind referred to in section 34(2) would not know whether they were here legally or not, unless that matter were determined definitively. That would be a very unfortunate circumstance.
GUMMOW J: But it is equally uncertain as to whether a person was the holder of a permanent entry permit, was it not?
MR CAVANOUGH: Not at all, your Honour. It is crystal clear as to whether someone is the holder of a permanent entry permit.
GUMMOW J: Why is that?
MR CAVANOUGH: One just looks up the Department’s records and the answer will be there. That is the point we make in our submissions at ‑ ‑ ‑
GUMMOW J: So you fix on the uncertainty of the phrase “ceased to be an immigrant” in 34(2)(b).
MR CAVANOUGH: Yes, among other things, and we say that ‑ ‑ ‑
HAYNE J: Well, ceased to be an immigrant on or before 2 April 1984.
MR CAVANOUGH: Yes, April 1984, a very difficult proposition. Your Honour, it is also clear that ‑ ‑ ‑
HAYNE J: Just a moment. Was Mr Nystrom of full age by 1984?
MR CAVANOUGH: No, he was 10. It was a very difficult borderline case here.
HAYNE J: Would the determination of whether he as an infant had ceased to be an immigrant be affected in any way by what his parents were then doing?
MR CAVANOUGH: Yes, so the cases say.
HAYNE J: Were both parents living together at that point?
MR CAVANOUGH: No, they had split up by then.
HAYNE J: And the father, as it happens, remained in Australia, did he?
MR CAVANOUGH: Yes, he did, somewhere else in Australia.
HAYNE J: But it would be possible to posit a case where the father had returned, whether to the country of origin or elsewhere?
MR CAVANOUGH: And the mother of course made trips back to Sweden from time to time too, and was not fully settled here. But we made the concession and we do not resile from it. I am sorry if I have misstated something, I apologise, but I am sure I read that there was a trip or two – maybe it was in more recent years.
HAYNE J: I think it is the expression “fully settled” that might have excited some people, Mr Cavanough; I would have thought with some justice.
MR CAVANOUGH: I withdraw it, your Honour. The point I am making is a general one. These are difficult judgments, as the cases that your Honours have looked at in recent years confirm. For that reason alone, it would be most unfortunate if so many people were thrown into uncertainty as to whether they were lawfully here or not. These absorbed person visas are not entrenched. If a person leaves the country, they cease to exist. The person would have to apply again.
Moreover, my learned friend’s reliance on the Act as distinct from the regulations to which we turn, the regulations made under specific authority, section 82(2) itself shows that the priority goes according to time, not according to whether the visa is granted under the Act or under the regulations. Here there is nothing to choose in relation to time and there is simply insufficient reason, indeed no good reason, every good reason not to read into regulation 4 the qualification that it is not to apply where some other statutory visa might otherwise come into force at the same time or at any other time.
In relation to the matter of ex‑citizen visas that Justice Hayne mentioned, we would say it is plain on the face of that provision that there could be a person who would be entitled to both visas as at the same moment on 1 September 1994. Take the case of a person who came in 1970 to Australia, was absorbed, say, in 1980, if one can ever be confident about that, became a citizen in 1981, then took citizenship of a foreign country in 1990, thereby losing Australian citizenship, never left Australia. On 1 September 1994 that person would acquire both a section 34 and a section 35 visa.
It is not to the point that other examples may be difficult to identify. Regulation 4 and section 34(2) should each operate in accordance with their own terms, unless some repugnancy is shown, and no repugnancy is shown. There is simply no proper legal basis to read regulation 4 down or, indeed, to read down section 501. It is a fundamental principle of statutory interpretation that if one is going to read words into a statute or read down a statute it must be clear what words should be read into the statute or in what way the statute must be read down.
It must be a necessary implication, not just a choice that one might care to make. That is a well‑established proposition in cases like CIC and others. One does not read in words unless they are there as a matter of necessary implication. It is crystal clear what Parliament meant to say but omitted to say.
Another consequence of my learned friend’s submissions, if they were correct, would be that the Minister would be under an obligation to get it right in each case of a doubtful absorbed person in order to tell whether the person did have an absorbed person visa or not, which would be an intolerable burden, really, to place on the Minister in administering section 501, which has nothing to do, really, with going back to what may be ancient facts and circumstances that led to the grant of a visa but is really to do with whether, as of the time of the making of the decision, it is appropriate in the Minister’s judgment of a person to have no visas to remain in Australia. If the Court pleases.
GLEESON CJ: Thank you, Mr Cavanough. We will reserve our decision in this matter and we will adjourn until 10.00 am tomorrow.
AT 3.11 PM THE MATTER WAS ADJOURNED
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