Minister for Immigration and Citizenship v Administrative Appeals Tribunal
[2013] FCA 803
•13 August 2013
FEDERAL COURT OF AUSTRALIA
Minister for Immigration and Citizenship v Administrative Appeals Tribunal [2013] FCA 803
Citation: Minister for Immigration and Citizenship v Administrative Appeals Tribunal [2013] FCA 803 Appeal from: QAAA v Minister for Immigration and Citizenship [2012] AATA 442 Parties: MINISTER FOR IMMIGRATION AND CITIZENSHIP v ADMINISTRATIVE APPEALS TRIBUNAL and QAAA File number: QUD 403 of 2012 Judge: COLLIER J Date of judgment: 13 August 2013 Catchwords: MIGRATION – non-citizen convicted of stealing money from ATMs – cancellation of visa on character grounds by delegate of Minister pursuant to s 501(2) Migration Act 1958 (Cth) – Administrative Appeals Tribunal set aside decision of delegate and remitted matter to Minister for reconsideration – appeal against decision of Tribunal – construction and application of s 501 and Direction no. 41—Visa refusal and cancellation under s 501 – unfettered discretion of decision-maker under s 501 – weighing process required as between primary considerations and other considerations – whether Tribunal erred in considering as relevant to exercise of discretion the non-citizen’s offer to assist Australian Federal Police – relevance of imminent expiry of visa – relevance to construction of power in s 501(2) of provisions of Pt 2 Div 4 Migration Act 1958 (Cth) concerning criminal justice visitors – legal status of non-citizen – public interest in providing co-operation and assistance to law enforcement authorities Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 43(1) and (6)
Migration Act 1958 (Cth) Pt 2 Div 4, ss 13, 15, 38, 44, 147, 148, 150, 155-164, 499, 501(2) and (6)Cases cited: Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65 cited
Aksu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 667; [2001] FCA 514 cited
Bulger v Queensland Community Corrections Board [1994] 2 Qd R 239 cited
Malvaso v The Queen (1989) 168 CLR 227 cited
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 cited
Minister for Immigration and Citizenship v Makasa (2012) 207 FCR 488 cited
Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236 cited
Ruhl v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 401; [2001] FCA 648 cited
Williams v Queensland Community Corrections Board [2001] 1 Qd R 557 citedDate of hearing: 12 March 2013 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 52 Counsel for the Applicant: Mr P Gray SC Solicitor for the Applicant: Sparke Helmore Lawyers Counsel for the First Respondent: The First Respondent did not appear Counsel for the Second Respondent: Mr D Rangiah SC Solicitor for the Second Respondent: Hartnett Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 403 of 2012
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP
ApplicantAND: ADMINISTRATIVE APPEALS TRIBUNAL
First RespondentQAAA
Second Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
13 AUGUST 2013
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
The application filed 20 August 2012 is dismissed with costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 403 of 2012
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP
ApplicantAND: ADMINISTRATIVE APPEALS TRIBUNAL
First RespondentQAAA
Second Respondent
JUDGE:
COLLIER J
DATE:
13 AUGUST 2013
PLACE:
BRISBANE
REASONS FOR JUDGMENT
This is an application filed by the Minister for Immigration and Citizenship (“the Minister”) wherein the Minister seeks orders quashing the decision of the Administrative Appeals Tribunal (“the Tribunal”) in this proceeding. In its decision the Tribunal had set aside the order of a delegate of the Minister cancelling the visa of the second respondent, identified only as QAAA, and remitted the matter to the Minister for further consideration pursuant to s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). QAAA is the true contradictor in this proceeding as the Tribunal filed a submitting appearance and did not otherwise participate in this proceeding.
Background
QAAA is a foreign national who came to Australia several years ago on a Subclass 457 Business (Long Stay) visa. That visa expires in early 2014.
On 3 June 2011, QAAA pleaded guilty to “ATM skimming” offences, namely offences which involve the theft of money from automatic teller machines. He was sentenced to imprisonment for a term of three years with a non-parole period of 18 months, and released on 3 February 2012.
On 29 February 2012 a delegate of the Minister made the decision to cancel QAAA’s visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (“Migration Act”), and Direction no. 41 – Visa refusal and cancellation under s 501 made under s 499 of the Migration Act (“the Direction”). The visa was cancelled on the basis that QAAA did not pass the “character test” as defined in s 501(6) of the Migration Act. A person fails the character test if they have a substantial criminal record, that is the person has been sentenced to imprisonment for at least 12 months.
On 21 April 2012 QAAA was re-arrested on charges of dishonesty. QAAA then offered information to the Australian Federal Police (“AFP”) regarding ATM skimming gangs in Australia.
On 24 April 2012 the decision of the delegate to cancel QAAA’s visa was communicated to QAAA. On 3 May 2012 QAAA sought review of the delegate’s decision under s 25 of the AAT Act.
The only issue before the Tribunal concerned the delegate’s exercise of discretion in cancelling the visa, as QAAA accepted that he failed the “character test”. On 13 July 2012, the Tribunal set aside the delegate’s decision to cancel QAAA’s visa and remitted the matter to the Minister.
The Tribunal’s decision
In the course of its decision the Tribunal had regard to the Migration Act and the Direction in effect at the relevant time.
The power of the Minister to cancel a visa for reasons associated with bad character of a visa holder is found in s 501 of the Migration Act which reads (materially) as follows:
…
(2) The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
…
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a) …
(b) …(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or
(e) …
The Minister has, however, issued the Direction to guide delegates in relation to making a decision to cancel a visa under s 501(2). Relevant directions are issued pursuant to s 499 of the Migration Act, which reads:
Minister may give directions
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.(1A)For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.
(2)Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
(2A) A person or body must comply with a direction under subsection (1).
(3)The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.
(4) Subsection (1) does not limit subsection 496(1A).
The Direction states that it applies to decision-makers performing functions or exercising powers under s 501 of the Migration Act to refuse to grant a visa to, or to cancel a visa of, a person who does not satisfy the Minister that the person passes the character test (para 4).
The Objectives of the Direction are stated in para 5.1 of the Direction as follows:
1.The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
2.In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens
3. …
Paragraphs 9, 10 and 10.1 of the Direction further provide:
9. Taking the relevant considerations into account
(1)Consistent with Part 2, paragraph 2 (Part B) of this Direction, decision-makers must take into account the primary considerations in every case. The other considerations (defined in paragraph 11) should be taken into account where relevant.
…
(2)Decision-makers should only take into account directly relevant considerations.
10. The primary considerations
(1)In deciding whether to refuse or grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:
(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b)whether the person was a minor when they began living in Australia;
(c)the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations …
10.1 Protection of the Australian community
(1)Due consideration is to be given to the Government’s objectives set out in Part 1, paragraph 5 of this Direction.
(2)The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:
(a) the seriousness and nature of the relevant conduct; and
(b) the risk that the conduct may be repeated.Before the Tribunal, QAAA argued (in summary) that:
·although he had a substantial criminal record, there were circumstances demonstrating that cancelling his visa was not the preferable decision;
·although his conduct was serious, his activity was at a “fairly low level”;
·his wife and employer would experience hardship if his visa were cancelled.
In considering these submissions the Tribunal observed:
·to describe QAAA’s conduct as “fairly low level” was an understatement – in fact ATM skimming is a very serious matter;
·it was not satisfied that QAAA’s conduct would not be repeated, because he had visited Australia on three occasions to engage in that criminal conduct;
·it was not satisfied that QAAA’s wife and employer would experience hardship through his visa cancellation because his wife had come to Australia at a time when she was aware of the prospect of his visa being cancelled, and the employer could find another suitable employee to replace QAAA.
Accordingly, while there were strong reasons to confirm the decision of the delegate, the Tribunal noted that there were other matters confirming that cancellation of QAAA’s visa was not the preferable decision in this case. In summary, the Tribunal found:
·Unlike many cases, QAAA’s visa does not permit him to reside in Australia indefinitely, but rather expires of its own force in January 2014. Accordingly the Minister will have a further opportunity in the relatively near future to consider QAAA’s circumstances.
·The fresh charges laid in April 2012 had not been dealt with, and it is to be expected that they would be determined one way or another in the near future.
·Most importantly, QAAA was prepared to co-operate with the AFP in relation to identity fraud and ATM card skimming activities in Australia and overseas. The Tribunal observed however that the AFP had not met with QAAA’s lawyers prior to the Tribunal hearing. In particular, the Tribunal observed:
[26] ATM skimming offences are, as the Queensland Court of Appeal recognised, offences that strike at the integrity of, and public confidence in the use of ATM’s. More generally identity fraud has the capacity to undermine the integrity of the Australian financial system. There is then, as it seems to us, a considerable public interest in detecting and arresting those involved in such crimes at a high level. It is not possible to say whether [QAAA] is in a position to assist the police but, given the importance of detecting and preventing identity fraud crime, the better course in the present case is to make a decision that would provide the Australian Federal Police with an opportunity to meet [QAAA], to ascertain from him what information and assistance he can provide and to make an assessment of the worth of that information or assistance.
[27] To that end we propose to set the decision aside and remit the matter to the Minister for further consideration. We recommended that the Minister consider the result of the outstanding charges and obtain a report from the Australian Federal Police about the worth of any information or assistance that [QAAA] can, or will, provide. If it transpires that [QAAA’s] information is of no particular value or that [QAAA] is not genuinely prepared to cooperate, then it is likely that the same decision would be made. And we should make it clear that we do not suggest that a favourable decision ought be made if [QAAA] provides information and assistance; it will be for the Minister, or his delegate, to make a determination based on the material then available and informed by the terms of Direction 41.
Details of claim
The Minister submits that the Tribunal’s decision was affected by jurisdictional error. He argues that the Tribunal misapplied s 501 and the Direction, took into account irrelevant considerations and/or exercised its discretion in a manner no reasonable decision-maker would have done.
The Minister seeks the following relief:
·an order that a writ of certiorari issue to quash the decision of the Tribunal;
·a declaration that the decision of the Tribunal is invalid and of no effect;
·an order for a writ of mandamus requiring the Tribunal to consider and determine the matter in accordance with law; and
·costs.
Both parties were represented by Senior Counsel at the hearing. Detailed written submissions were filed by both parties. At the hearing Senior Counsel for the Minister indicated that he wished to put an additional twelve propositions to the Court. I granted leave to the Minister to file supplementary written submissions. QAAA subsequently filed further submissions in response.
For completeness I note that at the hearing QAAA did not press a notice of objection to the competency of the Minister’s application filed by him on 3 September 2012.
Questions for determination
Materially, the Minister contends that the Tribunal’s reasons for decision were unauthorised by and irrelevant to s 501(2) of the Migration Act and the Direction.
The Minister submits that the application before the Court requires the Court to determine the following questions:
1.Did section 501(2) of the Migration Act, and/or the Direction, and s43(1) of the AAT Act permit the Tribunal to take into account and rely on any of the following factors as reasons to set aside the cancellation decision:
(a)its finding that the Minister should make inquiries of the Australian Federal Police about the value of any information or assistance that the second respondent can or will provide about criminal activity in Australia (“criminal justice co-operation inquiries”); and/or
(b)its findings that the second respondent’s visa would expire in the relatively near future and/or that QAAA was the subject of further pending criminal charges (“additional reasons”)?
(The Minister submits that the answer to this question should be “no”)
2.Did the Tribunal fail to comply with the Direction, contrary to s 499(2A) of the Migration Act, in circumstances where it found that the primary considerations in the Direction required the cancellation to be affirmed, by setting aside the decision for the reason that the criminal justice co-operation inquiries should be made, or for the additional reasons?
(The Minister submits that the answer to this question should be “yes”)
3.Did the Tribunal act unreasonably in relying on the criminal justice co-operation inquiries or the additional reasons in exercising its discretion to set aside the cancellation decision?
(The Minister submits that the answer to this question should be “yes”)
4.Did the Tribunal’s review function extend beyond the matter of whether or not the second respondent’s visa should be cancelled by reference to the Direction to include the matter of whether the cancellation should be set aside to facilitate criminal justice co-operation inquiries and/or the additional reasons?
(The Minister submits that the answer to this question should be “no”)
In my view these questions helpfully encapsulate the issues before the Court, and I adopt them for consideration of the application before me.
Question 1 – whether factors taken into account by the Tribunal in setting aside the cancellation decision were irrelevant
The Minister submits that the Tribunal took into account irrelevant considerations in making its decision.
Most of the submissions of both parties addressed this issue.
In particular, the Minister referred the Court to Pt 2 Div 4 of the Migration Act. Part 2 Div 4 is entitled “Criminal justice visitors”. It is divided into five sub-divisions, namely:
·Subdivision A—Preliminary. The object of this subdivision is described by section 141 as follows:
This Division is enacted so that, if the administration of criminal justice requires the presence in Australia of a non-citizen, that non-citizen may be brought to, or allowed to stay in, Australia for the purposes of that administration.
· Subdivision B—Criminal justice certificates for entry.
·Subdivision C—Criminal justice certificates etc. staying removal or deportation. In particular, sections 147-149 provide as follows:
147 Commonwealth criminal justice stay certificate
(1) If:
(a)an unlawful non citizen is to be, or is likely to be, removed or deported; and
(b)the Attorney General considers that the non citizen should remain in Australia temporarily for the purposes of:
(i) the Extradition Act 1988; or
(ia)the International War Crimes Tribunals Act 1995; or
(ib)the International Criminal Court Act 2002; or
(ii)the Mutual Assistance in Criminal Matters Act 1987; or
(iii)the administration of criminal justice in relation to an offence against a law of the Commonwealth; and
(c)the Attorney General considers that satisfactory arrangements have been made to make sure that the person or organisation who wants the non citizen for the relevant purposes or the non citizen or both will meet the cost of keeping the non citizen in Australia;
the Attorney General may give a certificate that the stay of the non citizen’s removal or deportation is required for the administration of criminal justice.
(2)For the purposes of paragraph (1)(c), the cost of keeping the non citizen in Australia does not include the cost of immigration detention (if any).
148 State criminal justice stay certificate
(1) If:
(a)an unlawful non citizen is to be, or is likely to be, removed or deported; and
(b)an authorised official for a State considers that the non citizen should remain in Australia temporarily for the purposes of the administration of criminal justice in relation to an offence against a law of the State; and
(c)that authorised official considers that satisfactory arrangements have been made to make sure that the person or organisation who wants the non citizen for those purposes or the non citizen or both will meet the cost of keeping the non citizen in Australia;
the official may give a certificate that the stay of the non citizen’s removal or deportation is required for the administration of criminal justice by the State.
(2)For the purposes of paragraph (1)(c), the cost of keeping the non citizen in Australia does not include the cost of immigration detention (if any).
149 Application for visa not to prevent certificate
A criminal justice stay certificate for a non citizen may be given even though an application for a visa for the non citizen has been made but not finalised.
·Subdivision D—Criminal justice visas. Sections 155-161 provide as follows:
155 Criminal justice visas
(1)A criminal justice visa may be a visa permitting a non citizen to travel to and enter, and remain temporarily in, Australia, to be known as a criminal justice entry visa.
(2)A criminal justice visa may be a visa permitting a non citizen to remain temporarily in Australia, to be known as a criminal justice stay visa.
156 Criterion for criminal justice entry visas
A criterion for a criminal justice entry visa for a non citizen is that a criminal justice entry certificate about the non citizen is in force.
157 Criterion for criminal justice stay visas
A criterion for a criminal justice stay visa for a non citizen is that either:
(a)a criminal justice stay certificate about the non citizen is in force; or
(b)a criminal justice stay warrant about the non citizen is in force.
158 Criteria for criminal justice visas
The criteria for a criminal justice visa for a non citizen are, and only are:
(a) the criterion required by section 156 or 157; and
(b) the criterion that the Minister, having had regard to:(i) the safety of individuals and people generally; and
(ii)in the case of a criminal justice entry visa, arrangements to ensure that if the non citizen enters Australia, the non citizen can be removed; and
(iii)any other matters that the Minister considers relevant;
has decided, in the Minister’s absolute discretion, that it is appropriate for the visa to be granted.
159 Procedure for obtaining criminal justice visa
(1)If a criminal justice certificate, or a criminal justice stay warrant, in relation to a non citizen is in force, the Minister may consider the grant of a criminal justice visa for the non citizen.
(2)If the Minister, after considering the grant of a criminal justice visa for a non citizen, is satisfied that the criteria for it have been met, the Minister may, in his or her absolute discretion:
(a) grant it by causing a record of it to be made; and
(b)give such evidence of it as the Minister considers appropriate.
160 Conditions of criminal justice visa
(1)The regulations may provide that criminal justice visas are subject to specified conditions.
(2)It is a condition of a criminal justice entry visa for a non citizen that the non citizen must not do any work in Australia, whether for reward or otherwise.
(3) In subsection (2):
work, in relation to a non citizen, does not include work for the purposes for which there is a criminal justice certificate or criminal justice stay warrant about the non citizen, including, if those purposes are or include the imprisonment of the non citizen, work as a prisoner.
161 Effect of criminal justice visas
(1)A criminal justice entry visa for a non citizen is permission for the non citizen to travel to and enter and remain in Australia while it is in effect.
(2) A criminal justice stay visa for a non citizen:
(a)is permission for the non citizen to remain in Australia while it is in effect; and
(b)if the non citizen is in immigration detention, entitles the non citizen to be released from that detention.
(3)A criminal justice visa for a person does not prevent the non citizen leaving Australia.
(4)Subsection (3) does not limit the operation of any order or warrant of a court.
(5)The holder of a criminal justice entry visa may not apply for a visa other than a protection visa.
(6)If a non citizen who has held a criminal justice entry visa remains in Australia when the visa is cancelled, the non citizen may not make an application for a visa other than a protection visa.
·Subdivision E— Cancellation etc. of criminal justice certificates and criminal justice visas.
In summary, the Minister submits as follows:
·It is a well-recognised principle of statutory construction that the meaning of legislation must be determined by reference to the language of the instrument viewed as a whole.
·Here, the context includes the presence elsewhere in the Migration Act of specific provisions dealing with criminal justice stay certificates and criminal justice visas – in particular ss 38, 44, 147, 148, 150 and 155-164. The framework of those provisions contemplates certificates and visas being granted which enable the proper authorities to secure the presence in Australia of non-citizens for the purpose of the administration of criminal justice, which certificates and visas are only granted subject to certain conditions and safeguards. This was clearly intended to constitute a comprehensive regime governing the presence of non-citizens required for criminal justice purposes.
·If the exercise of discretion not to cancel a visa under s 501(2) of the Migration Act may be based on criminal justice co-operation matters, there is inconsistency between s 501(2) and the specific provisions dealing with criminal justice stay certificates and visas.
·The purpose of s 501 relates to protection of the Australian public from the conduct of a non-citizen, and does not extend to ensuring the continued presence of a non-citizen in Australia for the purposes of the administration of criminal justice generally.
·It follows that none of s 501(2) of the Migration Act, the Direction, or s 43(1) of the AAT Act should be read as permitting the criminal justice co-operation inquiries to be taken into account as a reason to set aside the cancellation decision.
·The observations of the full Court in Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65 at [105] should not be read broadly. The additional reasons of the Tribunal in this proceeding fall outside the scope of the relevant comments in Akpata.
·The issue of principle is exposed clearly by the fact that the Tribunal found that, if the matter was one of “to cancel or not to cancel” the visa, reference to Direction no. 41 would undoubtedly require cancellation.
In response, QAAA submits, in summary, that:
·The argument of the Minister is inconsistent with the decision in Akpata, in particular at [105]-[107] of that judgment.
·There is an obvious and legally recognised public interest in encouraging persons to assist in the exposure and prosecution of offenders.
·There is no reason why matters relevant to the grant of criminal justice stay certificates and visas cannot be taken into account in the exercise of the discretion under s 501(2).
·The Direction specifically requires decision-makers to take into account as a primary consideration “the protection of the Australian community from serious criminal or other harmful conduct”. Encouraging persons to inform on criminals is an aspect of protecting the Australian community from serious criminal conduct.
·There is no inconsistency between s 501(2) and Pt 2 Div 4 of the Migration Act because s 501(2) is concerned with lawful non-citizens whereas Pt 2 Div 4 deals with unlawful non-citizens.
·The grant of a criminal justice stay visa does not operate as an inducement for non-citizens to cooperate with law enforcement authorities.
·The proximity of the expiry of QAAA’s visa was a relevant consideration for the Tribunal.
The submissions of the Minister in relation to this question are well-structured and persuasive. However, I also consider that they are flawed. I do not accept the solution posed by the Minister to the first question for decision. I take this view for the following reasons.
First, it is not in dispute that the option is open to the Tribunal to remit the decision for reconsideration to the Minister should the Tribunal consider such a course appropriate. That this is a clear option is apparent from s 43(1)(c)(ii) of the AAT Act. For the Tribunal to make that decision it must obviously take into account considerations which are relevant to the exercise of its power to make that decision.
Second, I do not accept that it follows that, because there is a regime established in Pt 2 Div 4 of the Migration Act for criminal justice certificates and visas to permit non-citizens to remain in Australia for reasons associated with the administration of criminal justice, the Tribunal (or, for that matter, a delegate of the Minister) cannot have regard to considerations relevant to the administration of criminal justice in deciding whether to cancel a visa of a non-citizen under s 501(2) for reasons associated with criminal activity.
Recently the Full Court in Minister for Immigration and Citizenship v Makasa (2012) 207 FCR 488 considered s 501(2) of the Migration Act and observed at [59]:
Section 501(2) confers a discretionary power on the Minister to cancel the visa of a non-citizen if the jurisdictional facts stated in the two paragraphs of that subsection are satisfied. In short, the discretion arises where the person does not satisfy the Minister that he or she passes the character test. The discretion conferred on the Minister is unconfined in its terms. Thus, any limitations on the scope of the power must be derived from the subject matter, scope and purpose of the enactment: Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 at [67], citing inter alia, Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J.
(Emphasis added.)In circumstances where a person fails the character test because of involvement in criminal activities, it is quite feasible that such a person may have knowledge of criminal activities such as to prove useful to law enforcement authorities. It is also quite reasonable for the prospective use of such knowledge to be taken into account by the decision-maker in deciding whether to cancel the person’s visa. Certainly as was observed in Makasa, s 501(2) confers an unfettered discretion on the Minister to cancel (or not cancel) the visa of a person who does not pass the character test (cf Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at [126]; Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236) and there is no specific exclusion of potentially relevant considerations to be taken into account in making this decision listed in either the Migration Act or the Direction. Rather, the contrary appears from the terms of the Direction – while the Direction prescribes primary considerations to be taken into account by a decision-maker in deciding whether to cancel a visa, significantly para 11(1) states:
(1)In reaching a decision on whether to refuse or cancel a visa, other considerations, although not primary, may be relevant, and if so, must be considered.
While para 11 then goes on to list “other [possible] considerations”, these are qualified by the use of the word “included” and the list is neither exhaustive nor definitive.
Decisions of this Court where earlier versions of the Direction were considered found that, in light of the unfettered discretion of the Minister in s 501(2) of the Migration Act, in particular circumstances any one factor may, at least theoretically, outweigh any other possibly relevant factor (including primary considerations): Aksu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 667; [2001] FCA 514 at [24], Ruhl v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 401; [2001] FCA 648 at [39]-[40]. In my view this approach remains applicable in construing the Migration Act and the effect of Direction no. 41.
Third, and in any event, a “primary consideration” which the Direction requires the decision-maker to take into account includes the protection of the Australian community from serious criminal or other harmful conduct. The Tribunal formed the view that there is considerable public interest in detecting and arresting persons involved in ATM skimming, and that there was the prospect that QAAA could provide the AFP with information in this regard, but at the time of their decision it could not be said with certainty whether that was the case. This view is valid. Indeed, there is extensive authority supporting the principle that there is a clear and legally recognised public interest in the encouragement of persons to assist in the exposure and prosecution of offenders even where the disclosure is made by an offender: Bulger v Queensland Community Corrections Board [1994] 2 Qd R 239 at 245; Malvaso v The Queen (1989) 168 CLR 227 at 239; Williams v Queensland Community Corrections Board [2001] 1 Qd R 557 at 569.
Fourth, I accept the submission of QAAA that the regime established by Pt 2 Div 4 of the Migration Act and the discretion of the Minister to cancel a visa under s 501(2) relate to the exercise of separate and distinct powers concerning non-citizens of different status. In particular, I accept that provisions concerning the issue of criminal justice certificates and visas under Pt 2 Div 4 relate to unlawful non-citizens, whereas decisions the subject of s 501(2) relate to lawful non-citizens as defined in s 13 of the Migration Act. This is clear from construction of the Migration Act, in particular:
·The power of the Minister to cancel a visa under s 501(2) relates only to the visa of a lawful non-citizen – that is a non-citizen in the migration zone who holds a visa.
·It follows that it is not necessary to grant a lawful non-citizen a criminal justice certificate or visa to remain in Australia.
·Although a lawful non-citizen becomes an unlawful non-citizen by reason of the cancellation of his or her visa (s 15 Migration Act), until the visa is cancelled the non-citizen remains lawful.
It follows that there is no potential inconsistency between s 501(2) and Pt 2 Div 4 if the discretion not to cancel the visa of a lawful non-citizen under s 501(2) is exercised by reference to criminal justice co-operation matters.
Further in this context I note the operation of s 43(1) and s 43(6) of the AAT Act. Under s 43(1) it is the task of the Tribunal in review to exercise all the powers and discretions conferred by the Migration Act on the decision-maker. Section 43(6) provides:
(6) A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.
In light of these provisions I do not accept the proposition that, at the time of the Tribunal hearing, QAAA had become an unlawful non-citizen such that, in considering QAAA’s application to set aside the delegate’s decision to cancel his visa, the Tribunal was excluded from considering the prospect of QAAA assisting the AFP in its criminal investigations. Such a finding would be inconsistent with the review function of the Tribunal to, in substance, stand in the shoes of the decision-maker in making the relevant decision. It would also mean that, at least for the purposes of the review by the Tribunal, QAAA had been a lawful non-citizen prior to the delegate’s decision, then became an unlawful non-citizen prior to the Tribunal’s decision, and then retrospectively became a lawful non-citizen following the Tribunal’s decision. Such a tortuous interpretation of the Migration Act would be, in my view, incorrect.
Fifth, QAAA specifically referred me to the decision of Cooper J in Ruhl. While this case dealt with a different Ministerial direction, and to that extent only limited assistance can be drawn from the decision, the facts there were somewhat similar to those currently before me. In Ruhl his Honour considered that, upon a proper construction of s 501 and applying Direction - Visa Refusal and Cancellation under s 501 - no. 17 made under s 499 of the Migration Act (being the Direction then in force), it was relevant to consider the public interest in declining to cancel the visa so as to encourage persons in the position of the applicant to assist the authorities in the exposure and prosecution of persons responsible for criminal activity in Australia. Similar considerations are relevant in the case before me.
Sixth, the Minister referred me to the observation of the Tribunal at [16] that:
Were the matter to be one of choosing between cancellation and non-cancellation of [QAAA’s] visa, reference to Direction 41 would undoubtedly require the decision to be affirmed.
The Minister claimed in supplementary written submissions that this observation “exposed the issue of principle so clearly”. In my view, however, this sentence should be read in the context of the reasons given by the Tribunal. In particular, the Tribunal explained that there were reasons, by reference to primary considerations in Direction no. 41, why the decision to cancel the visa should be affirmed, including the failure of the character test by QAAA, the fact that he was not a minor, the serious criminal conduct in which he had been involved, and the absence of any claim on international obligations or in relation to hardship to his relatives. However it is necessary to read the Tribunal’s comment in light of the Tribunal’s subsequent elucidation of additional considerations relevant to the decision whether the visa should be cancelled, and the Tribunal’s decision which followed. I do not consider that anything of note in this case turns upon this comment of the Tribunal.
Finally, the Full Court in Akpata clearly found that s 501 of the Migration Act should be given a broad construction. In particular I note the following comments of Lander J (Carr and Sundberg JJ agreeing):
[105] The definition of a person passing the character test in s 501(6) shows that Parliament intended that persons who have been convicted of relatively serious crime; associate with criminals; have a history including an immediate history of criminal conduct or general conduct indicating bad character; are a significant risk of engaging in criminal conduct or undesirable conduct (s 501(6)(d)), should not be permitted to travel to or remain in Australia. Shortly put, persons who have committed or are likely to commit criminal or other like conduct should not be permitted to travel to or remain in Australia. Because the purpose is to exclude those persons, the matters that are relevant to the exercise of the Minister’s discretion will include any fact or circumstance which would suggest that a person of otherwise bad character (as it is defined in the Act) should be allowed to travel to or remain in Australia.
[106] Where the applicant has failed to pass the character test because the applicant has a substantial criminal record (as in this case), the seriousness of the offences; the circumstances of the offences for which convictions have been recorded; any mitigating facts or circumstances relating to the convictions; the degree of remorse or contrition of the applicant; the sentencing remarks of the sentencing court; the applicant’s history before and after the convictions; the applicant’s personal circumstances; the effect of an order under s 501 on the applicant’s dependents and his family; the prospects of the applicant’s rehabilitation; and the chances of the applicant committing further offences would usually be relevant factors to which the Minister would have regard.
[107] In short, any matter that would move the Minister to allow a person of proven bad character (as it defined in the Act) to travel to or remain in Australia, notwithstanding that proven bad character, would be relevant to a decision by the Minister.
(Emphasis added.)These comments were recently adopted by the Full Court in Makasa at [64].
I do not accept the narrow interpretation of these comments urged by the Minister. “Any fact or circumstance which would suggest that a person of otherwise bad character (as it is defined in the Act) should be allowed to travel to or remain in Australia” as stated by Lander J at [105] in Akpata clearly extends to the prospect of co-operation with criminal investigations. While the prospect of QAAA’s visa expiring imminently is, in my view, an issue of less relevance to a decision to cancel the visa than the prospect of QAAA’s co-operation with law enforcement authorities, I am not prepared to find that it is a factor irrelevant to a decision to remit the decision to the Minister for further consideration.
It follows that, in my view, the answer to Question 1 as posed by the Minister is “yes”.
Questions 2, 3, and 4
In light of my findings concerning Question 1, the remaining questions can be dealt with swiftly.
In relation to Question 2, for reasons I have given I am not persuaded that the Tribunal failed to comply with the Direction. Rather, it is clear that the Tribunal was persuaded by other considerations – as contemplated by para 11 – that the appropriate decision was to remit the cancellation decision to the decision-maker for reconsideration. Accordingly, I consider that the answer to this question should be “no”.
In relation to Question 3, for reasons I have already given I am not satisfied that the Tribunal acted unreasonably in relying on the criminal justice co-operation inquiries and additional reasons in exercising its discretion. The Tribunal clearly had regard to relevant considerations and weighed those considerations in reaching its decision. It is clear that each decision must be reached on the merits of the relevant case, and different considerations will arise depending on the circumstances. The answer to Question 3 is “no”.
Finally, I do not consider it necessary to answer Question 4 in the circumstances of this case. The considerations taken into account by the Tribunal were relevant to its decision to remit the matter to the Minister for further reconsideration. As no error of law appears on the face of the Tribunal’s decision, that is adequate to dispose of the proceeding.
Conclusion
The appropriate order is to dismiss the application with costs.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 12 August 2013
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