MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT
AND
STEFAN NYSTROM RESPONDENT
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 8 November 2006 M5/2006
ORDER
1. Appeal allowed.
2.Set aside paragraphs 2, 3, 4(a) and (b) (i), (ii) and (iii) of the order of the Full Court of the Federal Court made on 1 July 2005 and, in their place, order that the appeal be dismissed.
3. The appellant pay the respondent's costs of the appeal to this Court.
On appeal from the Federal Court of Australia
Representation
A L Cavanough QC with S P Donaghue for the appellant (instructed by Australian Government Solicitor)
D S Mortimer SC with L G De Ferrari for the respondent (instructed by Victoria Legal Aid)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom
Immigration – Cancellation of Visas – s 501(2) of the Migration Act1958 (Cth) ("the Act") – Where Minister purported to cancel a "transitional (permanent) visa" on the basis of the respondent failing the character test in s 501(6) of the Act – Where respondent had a substantial criminal record – Where respondent had lived in Australia since he was 27 days old – Where respondent held an "absorbed person visa" – Whether the respondent also held a "transitional (permanent) visa" – Whether as a matter of construction the Act allowed the respondent to hold both an "absorbed person visa" and a "transitional (permanent) visa".
Administrative law – Decision of Minister under s 501(2) or s 503 of the Act – Jurisdictional error – Whether there was a misdescription of a visa which invalidated the Minister's decision – Whether a failure to take into account relevant considerations invalidated a decision – Whether the Minister's cancellation of a "transitional (permanent) visa" and disregard of the "absorbed person visa" amounted to jurisdictional error – Where s 501F(3) would operate to cancel both visas.
Statutes – Statutory Construction – expressum facit cessare tacitum – Where s 201 of the Act excludes certain persons from the scope of the Minister's power to deport pursuant to s 200 of the Act – Where the respondent was a person covered by s 201 and also not an object of the power to deport pursuant to s 200 – Whether s 201 of the Act confers a protection against deportation – Whether the subject matter of ss 200, 201 and 501 of the Act is the same, dealing with the removal of persons who have been convicted of offences from Australia – Whether the Minister's lack of power to deport the respondent under s 200 limits the Minister's power to cancel a visa under s 501 – Whether s 501 repugnant to ss 200 and 201 so as to necessitate s 501 being read subject…
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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AGLC
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50
Case
[2006] HCA 50
Decision Date
CaseChat Overview and Summary
The Minister for Immigration and Multicultural and Indigenous Affairs appealed to the High Court of Australia against a decision of the Full Court of the Federal Court, which had found that the Minister had committed jurisdictional error in cancelling Mr Nystrom's transitional (permanent) visa. Mr Nystrom, who had lived in Australia since he was 27 days old and held an "absorbed person visa", argued that the Minister's cancellation of his transitional visa was invalid. The core of the dispute concerned whether the Minister's power to cancel a visa under s 501 of the *Migration Act 1958* (Cth) was limited by provisions relating to deportation under ss 200 and 201 of the Act.
The legal issues before the High Court included whether Mr Nystrom held both an absorbed person visa and a transitional (permanent) visa, and if so, whether the Act permitted him to hold both. Crucially, the Court had to determine whether the Minister's failure to consider Mr Nystrom's absorbed person visa when cancelling his transitional visa constituted a jurisdictional error, and whether the power to cancel a visa under s 501 was restricted by the provisions of ss 200 and 201, which dealt with deportation. This involved considering whether the subject matter of deportation and visa cancellation were the same, and if the specific provisions regarding deportation implicitly limited the general power of visa cancellation.
The High Court reasoned that Mr Nystrom did indeed hold both an absorbed person visa and a transitional (permanent) visa, and that these conferred no substantive difference in rights. The Court held that the Minister's cancellation of the transitional visa did not constitute a jurisdictional error, as the absorbed person visa was automatically cancelled by operation of s 501F(3) upon the cancellation of the transitional visa. Furthermore, the Court found that the power to cancel a visa under s 501 was not limited by the provisions of ss 200 and 201. It concluded that deportation and visa cancellation, despite potentially leading to the same practical outcome of removal, were distinct powers with different origins and subject matters, meaning the principle of *expressum facit cessare tacitum* did not apply to restrict the s 501 power.
Consequently, the High Court allowed the Minister's appeal, setting aside the orders of the Full Court and dismissing Mr Nystrom's appeal to that court. The appellant was ordered to pay Mr Nystrom's costs of the appeal to the High Court.
Orders
Orders of the court
1. Appeal allowed. 2. Set aside paragraphs 2, 3, 4(a) and (b) (i), (ii) and (iii) of the order of the Full Court of the Federal Court made on 1 July 2005 and, in their place, order that the appeal be dismissed. 3. The appellant pay the respondent's costs of the appeal to this Court.
Background
Background to the litigation
The asserted jurisdictional errors were not made out. From 1 September 1994, by operation of s 34(2) of the Act, Mr Nystrom held an Absorbed Person Visa. From the same date, by operation of reg 4(1)[63] of the Migration Reform (Transitional Provisions) Regulations (Cth) and s 40 of the Act, he also held a Transitional (Permanent) Visa. There was no difference in the substantive rights conferred by the two visas. That the Minister did not advert to the fact that Mr Nystrom held an Absorbed Person Visa when cancelling his Transitional (Permanent) Visa was not a failure to take a relevant consideration into account. The Absorbed Person Visa was cancelled by operation of s 501F(3) of the Act, upon the Minister's cancellation of Mr Nystrom's Transitional (Permanent) Visa. The power conferred on the Minister by s 501(2) to cancel a visa could be exercised in Mr Nystrom's case, and is not restricted by reference to the circumstances which would engage the exercise of the power of deportation under s 200 of the Act. Mr Nystrom's appeal to the Full Court should have been dismissed. The Minister's appeal to this Court should be allowed.[63]Entitled "Entry permits in force before 1 September 1994 to continue in effect".Background Mr Nystrom was born in Sweden on 31 December 1973. When he was 25 days old he travelled to Australia on a Swedish passport with his mother and sister. He entered Australia two days later, on 27 January 1974. On arrival he was granted a K51R(G) entry permit[64].[64]Evidence from the Department of Immigration (as it was then) shows that K51 designated migrant status, in the category of "Accompanying dependant". "R" indicated that "[t]he grantee is to be exempted from registration under the Aliens Act 1947-1966", and "G" designated that "[t]he grantee must be accompanied to Australia by the person specified in the visa", in this case Mr Nystrom's mother. Mr Nystrom's mother was born in Finland and migrated to Sweden in 1950 where she met and married his father. In 1966 the couple migrated to Australia. Their first child, a daughter, was born in Australia. In 1973, whilst pregnant a second time, Mr Nystrom's mother travelled back to Sweden with her daughter to visit family members. She stayed in Sweden for his birth when it became clear that it would be difficult to travel because of her advanced state of pregnancy. Mr Nystrom's parents separated when he was about five years old and are now divorced. His mother, father and sister continue to live in Australia. His mother is a permanent resident and his sister was born here and is an Australian citizen. Mr Nystrom has remained in Australia since his arrival when he was 27 days old as a lawful non-citizen up until the Minister's cancellation of his visa. Mr Nystrom accepts that he is an alien under the Constitution and has never contended to the contrary. Mr Nystrom has few ties with Sweden. His mother deposed that she has returned to Sweden to visit family members since 1974, but Mr Nystrom has never accompanied her and has not had much contact with her family in Sweden. He has some distant cousins in Sweden, but his mother indicated that he does not know their names, where they live or what they do. Furthermore, he has never learnt the Swedish language.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
GLEESON CJ
GUMMOW AND HAYNE JJ
(dissent)
HEYDON AND CRENNAN JJ
(dissent)
Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the "same power"[54], or are with respect to the same subject-matter[55], or whether the general power encroaches upon the subject-matter exhaustively governed by the special power[56]. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.[54]Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7.[55]The Wool Stores Case (1949) 78 CLR 529 at 550.[56]Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 678; Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat and Live‑stock Corporation (1980) 29 ALR 333 at 347.Conclusion respecting the Anthony Hordern submission The respondent's submission on the present appeal depends upon the proposition that in the circumstances of this case both s 501 and ss 200 and 201 deal with the same subject-matter, namely, the removal of persons from Australia who have been convicted of offences. The respondent points to the circumstance that a deportation order made under s 200 results in mandatory removal from Australia by the terms of the order followed by cancellation of any visa under s 82(2). An order cancelling a visa results in mandatory removal from Australia pursuant to s 198 of the Principal Act. The defect in that submission is that it fixes upon only one practical consequence of the respective orders. It does not address whether the subject-matter of the power is in law substantially the same. However, for the reasons which follow, the two powers do not deal with the same subject-matter so as to attract the operation of the maxim expressum facit cessare tacitum and the reasoning which underpins Anthony Hordern and other decisions. The scheme of the Principal Act does not treat as having the one identity deportation and cancellation of a visa. This is so notwithstanding that, by reason of other provisions of the Principal Act, the exercise of both powers may well result in the same practical outcome. The ambit of the power to deport is not wholly subsumed within the ambit of the power to cancel a visa by reference to the character test in s 501(2). A review of the Principal Act reveals the distinct and different provenances of the powers of deportation and cancellation. That of ss 200 and 201 predates that of s 501. At the time of the respondent's arrival, an entry permit of the kind granted to him could not be cancelled, unlike a temporary entry permit which was liable to cancellation in the Minister's discretion (s 7). However, the Minister had various qualified powers under Div 2 of Pt 2 of the Principal Act to order the deportation of "aliens"[57] as defined (ss 12, 14(1)) and "immigrants" as defined[58] (ss 13, 14(2)) in specified circumstances and an unqualified power to deport "prohibited immigrants"[59] (s 18). [57]Section 5(1) of the Principal Act provided that "'alien' means a person who is not −(a) a British subject;(b) an Irish citizen; or(c)a protected person [with the same meaning as in the Nationality and Citizenship Act 1948-1958 (Cth)]."[58]Section 5(1) of the Principal Act extended the constitutional meaning of "immigrant" to include certain others.[59]"Prohibited immigrants" included any immigrant who entered Australia without an entry permit (s 6(1)) and any immigrant prescribed by s 16 notwithstanding that he or she held an entry permit.