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.
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
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.