Minister for Immigration and Ethnic Affairs v Baker

Case [1997] FCA 105


CATCHWORDS

ADMINISTRATIVE LAW )
IMMIGRATION ) - Appeal from AAT - construction of s 501 of Migration Act - whether "criminal conduct" is limited to conduct of which the person was convicted in a prosecution - whether "general conduct" means prevalent or usual conduct, or rather conduct in general - effect of requirement to have regard to particular matters, making them fundamental but not exclusive considerations - whether the word "or" in s 501(2)(a) is disjunctive, so as to isolate consideration of "criminal conduct" from that of "general conduct" - discussion of the validity of criticism of departmental Guidelines by AAT and the need for correction - meaning of "not of good character".

STATUTORY INTERPRETATION - authorities concerning meaning of "or" and "and" - context which required "or" to be read as a hybrid of disjunctive and conjunctive.

Migration Act 1958, s 501

Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364
The Queen v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322
Queensland Medical Laboratory v Blewett (1988) 84 ALR 615
Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523
R.F. Brown and Co., Limited v T. and J. Harrison (1927) 43 TLR 394; 43 TLR 633 at 639
Unity APA Ltd v Humes Ltd (No 2) [1987] VR 474
Ormerod v Blaslov (1989) 52 SASR 263
The Electricity Trust of South Australia v Krone (Australia) Technique Pty Ltd (1994) 51 FCR 540
In Re Davis (1947) 75 CLR 409
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Conway v Repatriation Commission (1988) 16 ALD 770
Cavell v Repatriation Commission (1988) 9 AAR 534
BTR PLC v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS -V- WENDY SUSAN BAKER

NG 604 of 1996

Burchett, Branson and Tamberlin JJ
Sydney
26 February 1997

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    NG 604 of 1996
  )
GENERAL DIVISION                 )

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Appellant

AND:WENDY SUSAN BAKER

Respondent

CORAM:    Burchett, Branson and Tamberlin JJ.
PLACE:    Sydney
DATE:     26 February 1997

MINUTE OF ORDERS OF THE COURT

THE COURT ORDERS THAT:

(1)The appeal be allowed with costs.

(2)The orders made at first instance be set aside, and in lieu thereof it be ordered that the appeal from the decision of the Administrative Appeals Tribunal be dismissed with costs, and that the decision of the Tribunal be affirmed.

NOTE:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    NG 604 of 1996
  )
GENERAL DIVISION                 )

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Appellant

AND:WENDY SUSAN BAKER

Respondent

CORAM:    Burchett, Branson…

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Minister for Immigration and Ethnic Affairs v Baker [1997] FCA 105
Case
[1997] FCA 105
Decision Date

CaseChat Overview and Summary

The present appeal concerns the interpretation of subsections 1(a) and 2(a) of section 501 of the Migration Act 1958, which provides for the refusal of a visa to a person on the ground that they are not of good character. The appeal arose from a decision of the Administrative Appeals Tribunal (AAT) which affirmed the refusal of a visa application for Joe Thorn, a British citizen, on the basis that he was not of good character. The AAT's decision was appealed to the Federal Court, which remitted the matter back to the AAT for reconsideration. The Minister for Immigration and Ethnic Affairs then appealed to the Full Court of the Federal Court.

The central legal issue was the interpretation of the phrase "having regard to" in subsection 2(a) of section 501, and whether the word "or" in this subsection is disjunctive or conjunctive. The court had to determine whether the AAT was required to focus exclusively on past criminal conduct or could consider general conduct as well. The court also examined the validity of the AAT's criticism of certain Departmental Guidelines, which the AAT found to be inhumane and irrational.

The Full Court held that the AAT was not required to anchor its decision solely on past criminal conduct or general conduct but could consider both as fundamental considerations. The court rejected the notion that the word "or" in subsection 2(a) was strictly disjunctive, instead interpreting it as a hybrid of disjunctive and conjunctive, allowing for both types of conduct to be considered. The court also noted that the AAT was entitled to consider conduct that was both criminal and general, and that a misnomer did not affect the substance of the decision. The Full Court held that the AAT's decision was not in error and affirmed the AAT's decision.

The Full Court allowed the appeal, set aside the orders made at first instance, and dismissed the appeal from the decision of the AAT with costs. The decision of the AAT was affirmed.

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