Minister for Immigration and Multicultural Affairs v Gunner
[1998] FCA 831
•17 JULY 1998
FEDERAL COURT OF AUSTRALIA
IMMIGRATION AND CITIZENSHIP – Deportation – order under s 200 of Migration Act 1958 by Minister’s delegate for deportation of non-citizen convicted of certain serious offences committed in Australia – successful application to Administrative Appeals Tribunal (“AAT”) under s 500 of Act for review of that decision – then Minister, acting personally, cancels person’s visa under s 501 and includes, as part of that decision, a certificate under s 502 declaring person to be an “excluded person”, with result that person not entitled to apply to AAT for review of the decision to cancel and that person not entitled to remain in Australia – condition of Minister’s power under s 502 that he or she decide that because of seriousness of circumstances “it is in the national interest that the person be declared to be an excluded person” – extent of power conferred on Minister under s 502 – whether power extends to situation in which AAT has set aside earlier deportation decision – whether decision to deport and decision to cancel visa based on same facts – meaning of “excluded person” and “national interest” in statutory context.
Migration Act 1958 ss 200, 201, 500, 501, 502, 503
Jia Le Geng v The Minister for Immigration and Multicultural Affairs, unreported, 1 July 1998, FCA/French J (WAG 63/1997) referred to
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v PAUL WILLIAM GUNNER
NG 49 of 1998
HEEREY, LINDGREN AND EMMETT JJ
SYDNEY
17 JULY 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 49 of 1998
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
APPLICANTAND:
PAUL WILLIAM GUNNER
RESPONDENTJUDGES:
HEEREY, LINDGREN AND EMMETT JJ
DATE OF ORDER:
17 JULY 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The appeal be allowed.
The orders made on 19 December 1997 in proceeding NG 533 of 1997 be set aside and in lieu thereof it be ordered that:
(a)the application be dismissed.
(b)the applicant in that proceeding pay the costs of the respondent in that proceeding.
The respondent pay the appellant’s costs of the appeal.
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 49 of 1998
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
APPLICANTAND:
PAUL WILLIAM GUNNER
RESPONDENT
JUDGES:
HEEREY, LINDGREN AND EMMETT JJ
DATE:
17 JULY 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
THE COURT:
A deportation order was made against the respondent under s 200 of the Migration Act 1958 (Cth) (“the Act”). The respondent successfully appealed to the Administrative Appeals Tribunal (AAT). The Minister then cancelled the respondent’s visa under s 501 of the Act and made a declaration under s 502 which effectively prevented an appeal to the AAT: s 500(1).
A judge of this Court upheld the respondent’s application for review on the ground that the Minister had no power to make orders under ss 501 and 502 where that decision was based on the same facts and circumstances as those that had caused the AAT to set aside the deportation order.
The respondent’s conduct
The respondent was born in England in 1964. He is a British citizen. After some earlier visits, he re-entered Australia in June 1989. He subsequently commenced a de facto relationship with Ms Lee Ann Ashby, who gave birth to their son on 31 January 1991. On 6 April 1992, the applicant was granted permanent residence based on his relationship with Ms Ashby who is an Australian citizen.
In late 1991, the respondent and some other men stole Westpac Banking Corporation travellers’ cheques which were stored at the premises of a printer for the purpose of completing some notations. Cheques to the face value of $32 million were stolen. Cheques to the value of half that amount were destroyed by one of the co-offenders. The trial judge who sentenced the respondent said:
“Of the $16 million remaining only $9 million have been returned from England and from where they were hidden in Australia or have been otherwise accounted for. The quality of the cheques is such that they must be met by Westpac on presentation. The Bank has already met $1.85 million worth, and daily more are presented. Westpac have, as a consequence, withdrawn from the business of issuing travellers’ cheques, leaving now only nine banks in the world which do.”
On 12 April 1992, the applicant travelled to the United Kingdom. Soon after arrival he was arrested on charges of conspiring to cheat and defraud Westpac.
After spending six months in prison in England, the respondent was extradited to Australia on 27 October 1992 and remained in custody until he was granted bail on 31 December 1992. The respondent remained on bail until 2 March 1994 when he was arrested on 17 counts of larceny. These offences involved systematic thefts from parked delivery vans in Sydney’s central business district committed while the respondent was on bail.
On 23 June 1994, the respondent pleaded guilty to the conspiracy and stealing charges as well as charges of giving a corrupt reward and conspiracy to obtain a passport unlawfully. Both these latter offences were committed while the respondent was on bail.
Judge Johnston of the District Court of New South Wales sentenced the respondent to a minimum term of two years and six months in respect of the conspiracy to cheat and defraud Westpac, a minimum term of twelve months in respect of the corruption offence, a fixed term of nine months in respect of the passport offence and a minimum term of two years in respect of each larceny offence. The effect of these sentences was a total minimum term of imprisonment which was to expire on 25 September 1998.
The Crown appealed and the NSW Court of Criminal Appeal allowed the appeal in relation to the larceny counts, substituting a minimum term of three and one-half years on each count. The Court directed that the respondent was not to be eligible for parole until 24 March 2000.
Deportation Order
On 6 March 1996, a delegate of the Minister made a deportation order against the applicant under ss 200 and 201 of the Act.
Tribunal Decision
On 4 April 1997, the AAT, constituted by Deputy President Dr Duncan Chappell, set aside the delegate’s decision and directed that the respondent not be deported. Dr Chappell found that the risk of recidivism by the respondent was low, that the respondent had expressed remorse for his crimes and that he had assisted authorities in recovering some of the stolen travellers’ cheques. The respondent’s prospects of successful reintegration into the Australian community depended to a significant degree upon the continuation of the strong emotional bonds he had with Ms Ashby and their son. There was evidence from a psychologist that the child had a strong emotional attachment to the respondent. Dr Chappell concluded that the risk of the respondent re-offending was “at an acceptably low level which guarantees adequate protection of the safety and welfare of the Australian community and does not demand that he be deported from the country”.
The Minister’s decision
On 2 May 1997, the Acting Assistant Secretary of the Compliance and Enforcement Branch of the Department of Immigration and Multicultural Affairs prepared a minute to the Minister. The minute set out what were said to be the basic options:
“1. Accept the decision of the AAT;
2. Appeal the decision of the AAT to the Federal Court;
3. For you to consider the question of deportation;
4.Consider cancellation of the visa on character grounds under section 501 of the Act.”
The minute made the following comments about options 3 and 4:
“Option 3 Consider the Deportation Afresh
13. Despite the decision of the AAT, you are personally able to consider the deportation of Mr Gunner and to consider issuing a certificate declaring Mr Gunner to be an excluded person under section 502 of the Act. This would have the effect of preventing a review by the AAT of your decision to deport Mr Gunner. However, it is necessary when issuing an exclusion certificate, you are satisfied that, due to the seriousness of the circumstances, the deportation decision is in the national interest.
14. This, no doubt, would result in an appeal against your decision to the Federal Court by Mr Gunner. It would then be possible for Mr Gunner to run the argument of unreasonableness of your decision. This would have some weight in that there has not been any change of circumstances since the decision of the AAT. The Federal Court would also be concerned about what would be seen as action to undermine the decision of the AAT which was not regarded as flawed as an appeal was not made against the decision of the AAT.
15. This course of action under 502 would also raise questions to be considered by the Federal Court as to the types of offence in which section 502 is an appropriate measure.
Option 4 Cancel the Visa on Character Grounds
16. There is the power under section 501 to cancel Mr Gunner’s visa on the basis of his past criminal conduct, culminating in a six years prison sentence. As with a decision by you personally to issue a deportation order, you could also issue a certificate pursuant to section 502, preventing a review of your decision by the AAT. The comments in paragraphs 13-15 relating to the issue of an exclusion certificate are equally applicable.
17. It should be noted also that it has been the practice that where there is the option of deportation or visa cancellation, that deportation would be followed.”
On 26 May, the Director of the Compliance Section wrote to the respondent at Long Bay Gaol advising that the Minister was proposing to consider action under ss 501 and 502. The letter advised of certain matters that could be taken into account by the Minister. These matters related to the crimes committed by, and the circumstances of, the respondent. The letter invited comment from the respondent. The respondent’s solicitors then made submissions on his behalf.
On 5 June, the Assistant Secretary of the Compliance Enforcement Branch submitted a minute to the Minister. In its summary, the minute advised the Minister that “[t]aking into account Mr Gunner’s criminal conduct and general conduct, you may decide whether Mr Gunner is or is not of good character”. After reference to the necessity to give primary consideration to the best interests of the respondent’s child the minute stated:
“If you decide to cancel the visa of Mr Gunner, it is possible to consider including a certificate declaring Mr Gunner to be an excluded person if you decide that the seriousness of the circumstances which caused you to cancel the visa are such that it is in the national interest that Mr Gunner’s visa be cancelled. A certificate is attached should you so decide. If you decide to issue a certificate of exclusion, arrangements will be made for a notice to the Parliament to be prepared.”
The minute described the background of the Tribunal’s decision and set out the respondent’s personal and family details. It summarised his convictions and sentences and referred to comments made by the various Courts. The minute stated:
“Mr Gunner has spent a little over one year in the community as a permanent resident in Australia. In that time he was committing crimes which were regarded by the trial and appeal judges as serious, warranting a lengthy sentence. The crimes were committed while awaiting for permanent residence and while on bail. The judges’ comments on the nature of the crimes are significant. There does not appear, from the evidence, that Mr Gunner has contributed to the Australian community. His ties with the community relate almost exclusively to those with his de facto spouse and their child. The risk of recidivism is difficult to assess. Prison reports available suggests Mr Gunner’s likelihood of recidivism is low. There appears no other supporting evidence for this conclusion.”
On 10 June the Minister personally signed a minute as follows:
“Minister’s Action
1. Mr Gunner
is/is not of good character under section 501;2 Mr Gunner’s permanent visa is/
is notcancelled under section 501;3. The reason for cancelling Mr Gunner’s visa is/
is notin the national interest; and4. Certificate declaring Mr Gunner an excluded person is/
is notsigned;
5. The appeal to the Federal Court against the decision of the AAT is/
is notto be withdrawnSgd
Philip Ruddock
10 / 6 / 1997”
On the same day the Minister signed a certificate which was in the following terms:
“CERTIFICATE
I, Philip Ruddock, Minister of State for Immigration and Multicultural Affairs, having decided that, because of the seriousness of the circumstances giving rise to my decision to cancel the permanent visa of Paul William GUNNER, it is in the national interest that Paul William GUNNER be declared an excluded person
do hereby so declare Paul William GUNNER to be an excluded person in accordance with subsection 502(1) of the Migration Act 1958.
Dated this 10th day of June 1997
Sgd
Philip Ruddock
Minister of State for
Immigration and Multicultural Affairs”.
Statutory Provisions
Part 2 Div 9 of the Act deals with deportation. In that Division s 200 provides:
“200. The Minister may order the deportation of a non-citizen to whom this Division applies.”
Section 201 relevantly provides:
“201. Where:
(a)a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;
(b)when the offence was committed the person was a non-citizen who:
(i)had been in Australia as a permanent resident:
(A)for a period of less than 10 years; or
(B)for periods that, when added together, total less than ten years; or
(ii)...
(A) ...
(B) … and
(c)the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;
section 200 applies to the person.”
The provisions under which the Minister acted are contained in Part 9 (Miscellaneous). In that Part, s 500 relevantly provides:
“500. (1) Applications may be made to the Administrative Appeals Tribunal for review of:
(a)decisions of the Minister under section 200 because of circumstances specified in section 201; or
(b)decisions of the Minister under section 501; or
(c)a decision to refuse to grant a protection visa, or to cancel a protection visa, relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2);
other than decisions to which a certificate under section 502 applies.”
(2) ...
(3) ...
(4) ...(5) For the purpose of reviewing a decision referred to in sub-section (1), the Tribunal shall be constituted by a presidential member alone.
(6) ...
(7) ...
Section 501 provides:
“ 501. (1) The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if:
(a) subsection (2) applies to the person; or
(b)the Minister is satisfied that, if the person were allowed to enter or to remain in Australia, the person would:
(i)be likely to engage in criminal conduct in Australia; or
(ii)vilify a segment of the Australian community; or
(iii)incite discord in the Australian community or in a segment of that community; or
(iv)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or violence threatening harm to, that community or segment, or in any other way.
(2)This subsection applies to a person if the Minister:
(a)having regard to:
(i)the person’s past criminal conduct; or
(ii)the person’s general conduct;
is satisfied that the person is not of good character; or
(b)is satisfied that the person is not of good character because of the person’s association with another person, or with a group or organisation, who or that the Minister has reasonable grounds to believe has been or is involved in criminal conduct.
(3) The power under this section to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person.”
Section 502 provides:
“502. (1) If:
(a) the Minister, acting personally, intends to make a decision:
(i)under section 200 because of circumstances specified in section 201; or
(ii)under section 501; or
(iii)to refuse to grant a protection visa, or to cancel a protection visa, relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2);
in relation to a person; and
(b)the Minister decides that, because of the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person;
the Minister may, as part of the decision, include a certificate declaring the person to be an excluded person.
(2) A decision under subsection (1) must be taken by the Minister personally.
(3) If the Minister makes a decision under subsection (1), the Minister must cause notice of the making of the decision to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the decision was made.”
The decision below
It will be necessary only to refer to those parts of his Honour’s judgment which were the subject of argument on the appeal. As already noted, the primary issue, and the one on which the respondent succeeded, was the contention that the powers under ss 501 and 502 could not be exercised on the basis of the facts and circumstances that were before the AAT.
His Honour found that the Minister’s decisions were based on the same material as was before the AAT. His Honour acknowledged that a number of considerations suggested that ss 501 and 502 were framed broadly enough to authorise the Minister, acting personally, to cancel the visa in the circumstances notwithstanding the AAT’s decision. Those suggestions were five in number.
First, the language of ss 501 and 502 does not expressly exclude the Minister’s power in such a case.
Second, the circumstances that enliven the power of deportation in s 200 are different from those that enliven the power in s 501. While there is some overlap between the criteria in s 201 and s 501, the criteria enlivening the powers are different.
Third, his Honour noted that the Minister could act under ss 501 and 502 even though the Tribunal had previously set aside a deportation. His Honour commented:
“It might be thought strange that, while the Minister can exercise the powers conferred by ss 501 and 502 where the circumstances have changed since the AAT’s decision, the Minister cannot do so where he or she takes a different view of the relevant facts from that adopted by the AAT.”
Fourth, if the Minister could cancel a visa in the case where no action had been taken under s 200 and thereby bypass the Tribunal, why should the Minister not be able to reach a different conclusion from the Tribunal when it has set aside a deportation order?
Fifth, while the power under s 502 is significant, it has specific safeguards designed to prevent a possible abuse of power and therefore there is no need to give ss 501 and 502 a narrow interpretation.
However, his Honour thought that there were countervailing considerations which justified acceptance of the respondent’s submissions. These were largely founded on the serious nature of deportation orders and the acceptance by Parliament of the general principle of binding merits review by the AAT. His Honour considered that the effect of a decision to deport a non-citizen under s 200 and a decision to cancel a visa under s 500 was “in substance the same, namely, removal of the person concerned from Australia”. His Honour concluded:
“In my view, it is one thing to read ss 501 and 502 as authorising the Minister, acting personally, to cancel a person’s visa and preclude review of that decision by the AAT, where no previous decision has been made by the AAT or where any such decision has been based on different facts and circumstances. It is quite another to construe the section as authorising the Minister, acting personally, to take the same action on the basis of the same facts and circumstances that caused the AAT to set aside a deportation order against the applicant. In effect, the Minister has decided to overturn a decision of the AAT which had overturned an earlier decision made by the Minister’s delegate. In my view, having regard to the statutory context and to the ‘scrupulous care’ with which ss 501 and 502 should be read, the legislation was not intended to confer on the Minister power to set at nought a determination by the AAT simply because the Minister takes a different view of the material considered by the AAT: cf Lynch v Minister for Human Services and Health (1995) 61 FCR 515 (FCA/FC), at 527-528, per Moore J. Whether the Minister’s view of the merits is or is not reasonable is not the point. It is that clearer language is required before ss 501 and 502 should be read as authorising such a result.
In reaching this conclusion I have not overlooked the objectives of the provisions introduced into the Migration Act in 1992. These include protecting the Australian community against persons who constitute a danger or threat by reason of past criminal conduct. But it is necessary to take into account other considerations in construing the relevant provisions, including Parliament’s recognition of the importance of review by the AAT of deportation decisions based on criminal conduct, including the AAT’s power to substitute its own decision in a particular case for that of the Minister.”
Conclusion on the appeal
In our view, the five reasons identified by his Honour compel an opposite conclusion. The language of ss 501 and 502 is unambiguous. The respondent’s case requires a reading into s 502(1) of words something along the lines “except where the Administrative Appeals Tribunal has set aside a deportation order made against the person on the basis of the same facts and circumstances”.
There can be no doubt that Parliament recognised the importance of merits review by the AAT and the particular seriousness of deportation orders (as witnessed by the requirement of s 500(5) that the Tribunal be constituted by a Presidential member alone). Nevertheless, the whole point of s 502 is to provide that merits review is not to be available in certain circumstances. Moreover, as his Honour accepted, Parliament has provided specific protections against abuse of this power in the requirements that it must be exercised personally by the Minister and that notice of the making of a decision under s 502(1) be laid before each House of Parliament. Further, it is not accurate in our respectful submission to speak of setting at nought the AAT’s determination. This is not a case where a Minister attempted to act in defiance of a binding ruling by the AAT. Sections 501 and 502 are quite separate sources of power. The criteria for the exercise of those respective powers are by no means co-extensive, although there is an overlap. The fortuitous circumstance that two separately-sourced powers might be exercised in respect of the same collocation of facts cannot affect the construction of the relevant statutory provisions, which must be given a meaning as at the time of their enactment.
In any event, it is not entirely correct to say that the Minister’s decision was “based on” the same facts and circumstances as had been considered by the AAT. The Minister did not have before him any material which was not before the AAT. But because of the different provisions of ss 201 and 501 the test is not the same and the criteria are different. The Minister, in exercising the discretion conferred by s 501, was entitled to take into account matters which were not relevant to a decision under s 200 based on the criteria specified in s 201.
The banking conspiracy offence, by far the most serious, was not viewed as a deportable offence because it was ongoing before the respondent became a permanent resident. Further, the passport conspiracy offence did not fall within s 201 because it resulted in a sentence of less than twelve months. On the other hand, both of those matters were factors which were relevant to the determination by the Minister of whether or not he should be satisfied that the respondent was not of good character. The Minister, in acting under s 501, is to have regard to any past criminal conduct and the person’s general conduct. The words “good character” should be understood as a reference to the enduring moral qualities of a person. Conduct may make those qualities visible, but it should not be confused with them. In each case, having had regard to the conduct, the Minister must still come to a further conclusion, namely, whether or not to be satisfied that the person is not of good character (see Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 197).
After the present appeal was argued French J delivered judgment in Jia le Geng v The Minister for Immigration and Multicultural Affairs (unreported, 1 July 1998). His Honour declined to follow the decision currently under appeal.
Counsel for the respondent in the present case sought to maintain the judgment below by two further arguments.
First, he contended that the decision was an abuse of power. The Minister was said to have exercised the power
“for at least the substantial purpose of substituting the Minister’s view as to whether the respondent should be permitted to remain in Australia for that which had been reached on the merits by the Tribunal.”
We do not accept this submission. It confuses the purpose of exercise of the power with the circumstances that gave rise to its exercise.
It was not suggested that, having regard to the serious crimes committed by the respondent, there was not material on which the Minister could be satisfied that he was not of good character. Nor could it be suggested that those crimes were not sufficiently serious to be capable of founding a view that it was in the national interest that he be deported. Counsel did not suggest that the Minister acted out of a fit of pique or was motivated by a desire to overturn the AAT’s decision just for the sake of doing so. It is true that in the circumstances of this case the question of orders under ss 501 and 502 would not have arisen if the AAT had reached a different decision. However, the Minister accepted the decision which the AAT did make. He did not disobey it and did not proceed with an appeal against it. 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.
The second argument was that the Minister erred in law by applying the wrong test in declaring the respondent to be an “excluded person” under s 502. It was argued that the only purpose and effect of certifying the person as an “excluded person” is the exclusion of that person from Tribunal review, not exclusion from Australia. The “national interest” which the Minister must consider was said to be not the national interest in exclusion from Australia, but the national interest in exclusion from merits review.
We accept that the word “excluded” in the present context is intended to signify “excluded from the right to apply to the AAT for review” rather than “excluded from Australia”. However, it does not follow that the respondent should succeed. When s 502(1)(b) speaks of
“the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person”,
the decision referred to is the decision of the kind referred to in s 502(1)(a)(i), (ii) or (iii) - in the present case a decision under s 501 (which is referred to in s 502(1)(a)(ii)). The “circumstances” in the present case are thus the respondent’s past criminal conduct: s 501(2)(a)(i). It is the seriousness of that conduct which has to be assessed in the national interest. Obviously enough, the national interest dictates that people who engage in sufficiently serious crime should not have the benefits of an Australian visa. The effect of s 502, when invoked, is to ensure that the Minister is to have the final and only say on the question of whether the person in question should or should not be entitled to enter or be in Australia. While the word “excluded” signifies exclusion from merits review by the AAT, the effect is that, since the relevant decision under s 201 or s 501 has been made by the Minister acting personally, the Minister and no one else can make the decision as to what is in the national interest. Not only is the Minister directly answerable to Parliament for his or her decision, but Parliament must in fact be informed of the decision: s 502(3).
Counsel for the respondent submitted that the only classes of circumstances that could make it in the national interest to exclude a person from entitlement to apply to the AAT for a review would be those connected with the AAT hearing itself, such as unreasonable delay or the possibility that the hearing might provide a platform for inflammatory and divisive racist rhetoric. However, such a reading is contrary to the language of the section and its evident purpose.
Orders
The appeal will be allowed. The order made on 19 December 1997 will be set aside and in lieu thereof it will be ordered that the application for review be dismissed. There will be an order that the respondent pay the costs of this appeal and of the proceedings below, including reserved costs.
I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Court
Associate:
Dated: 17 July 1998
Counsel for the Appellant: Mr J Basten QC and Mr T Reilly Solicitor for the Appellant: Australian Government Solicitor Counsel for the Respondent: Mr N Williams and Mr S Lloyd Solicitor for the Respondent: Mr Ray Turner Date of Hearing: 1 July 1998 Date of Judgment: 17 July 1998
21
0
0