Minister for Immigration & Ethnic Affairs v Renata, J

[1994] FCA 777

. ?

CATCHWORDS

' I. I , .

- appeal from Administrative &ale Tribunal -

whether application for entry visa should have been refused because of criminal record - consideration of relevant

provisions of and regulations

- . .

(as in force prior to 1 September 1994), S.

180A

11993) R , - e reg. 1.3, Schedule 4, cl. 4001

REOISTRY

Q2ZBJlK	Sheppard, Gunmrow, Carr JJ 20 September 1994
Rb.GS: Sydney	RECEIVED
FEDERAL COURT OF

AUSTRALIA PRINCIPAL

IN THE FULL COURT	1
OF THE FEDERAL COURT OF AUSTRALIA	1
NEW SOUTH WALES DISTRICT REGISTRY	) NO NG 165 of 1994
GENEFUG DIVISION	1

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE

ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY PURVIS J

BETWEEN:

-

Applicant

Respondent

ix.!mHr SHEPPARD, GUMMOW, CARR JJ

m?3!x~ SYDNEY

Q&lxt 20 SEPTEMBER 1994

ORDERS

-

1.    The appeal be allowed.

2.    The decision of the Administrative Appeals Tribunal made on 25 February 1994 be set aside.

1. In lieu thereof, the appeal to the Administrative Appeals Tribunal be dismissed and the decision made by the delegate of the Minister for Immigration and Ethnic Affairs on 18 August 1993 be affirmed.

4.    There be no order as to costs.

m!cE:	Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FULL COURT	1
OF THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	) No NG 165 of 1994
GENERAL DIVISION	1

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE

ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

FOR

-

Applicant

m:
-

Respondent

!x!uu:  SHEPPARD, GUMMOW, CARR JJ

Eu&zs SYDNEY

Q f u x Z	20 SEPTEMBER 1994
The Court: This is an appeal pursuant to the provisions of decision of a presidential member of the Tribunal (Purvis J),	the mnistrative ADDW~S Tribunal Act 1975 against a
given on 25 February 1994. The decision was that the decision under review be set aside and that the application of a Mr Nepia for a permanent entry visa (class 100) be remitted to the delegate of the respondent Minister for further consideration. The Minister appeals against that decision.
The facts of the matter are stated in the decision appealed from. On 16 June 1993, Mr Nepia and the respondent to the appeal, who was the applicant before the Tribunal, MS Renata, travelled to Sydney for a short visit. The two had been living together in a de facto relationship since about 1980. There were two children of the relationship. The children remained in New Zealand with relatives whilst their parents visited Australia. During the course of their stay in Australia, they made a decision to settle permanently in this country. Employment opportunities were said to have been offered to each of them.
The couple returned to New Zealand on 13 July 1993. Ms Renata resigned from her position in New Zealand and she and Mr Nepia set about organising their affairs so that they could leave for Australia. Mr Nepia was then, and had for some time past, been unemployed. On 2 August 1993 the four, that is to say, Mr Nepia, MS Renata and the two children, travelled from Auckland to Sydney. On arrival at Sydney Airport Mr Nepia was
refused entry. On 17 August 1993 he made an application for a interviewed by an immigration officer. In due course he was
permanent entry visa. On 18 August 1993 he was advised that his application for a permanent entry visa had been unsuccessful, the reason given being that he failed to meet the necessary character requirements. The essential reason why that was so was his criminal record. That is set out in the reasons of the Tribunal. It is unnecessary to repeat it here except to mention that on 4 June 1987 he was convicted of an offence described as assault with intent to injure "manually" for which he was sentenced to nine months imprisonment. On 28 January 1993, he was convicted of cultivating cannabis, which was said to be a class C controlled drug, and sentenced to 1 year's imprisonment "if called". We do not think that the meaning of the expression "if called" is explained in the evidence.
The decision made by the delegate on 18 August 1993 said that Mr Nepia did not meet "the good character requirement" of the uaration 119931 Reaulations ("the Regulations"). The Regulations were in force before the commencement on 1 September 1994 of significant changes to the legislation. In his statement of reasons for his decision, the delegate said that, although Mr Nepia had spent less than 12 months in prison, his latest offence was in 1993. This was a reference to the cannabis offence. The delegate continued:

"In my view Mr Nepia cannot demonstrate that he is
reformed.	A case cannot be made for his
rehabilitation in the community.	Mr Nepia's

criminal history lists 18 separate sentencing appearances over the previous 19 years including offences involving the use of violence.

4.   On the basis of Mr Nepia's past criminal history, I believe that it is likely that he would re-offend in Australia and hence undue harm would result to the Australian community."

It is unnecessary to refer further to the statement of the reasons of the delegate. We have taken them into account as part of the background of the matter. His Honour said that

Mr Nepia was the third eldest of 16 children. He grew up in a

family environment "that was addicted to violence". He was molested and tortured by his father from time to time. Some indication of the detail of that is given. References were apparently provided in support of the application and evidence was taken from Mr Nepia by telephone from New Zealand.

After reference to further evidence, his Honour referred to the submissions which had been made and then said:

"Mr Johnson of counsel appearing for the respondent

[the Minister] submitted that, in the above circumstances, applying the statutory prerequisite and t +e public interest criteria detailed in Schedu,e 4 [of the Regulations], the application should be dismissed and the decision-maker's
decision to refuse Mr Nepia's application be
affirmed.

The third party considerations which are relevant in the exercise of the decision -maker's discretion were

not here overly persuasive. MS Renata and the

children have been in Australia for only a short

time. MS Renata and Mr Nepia first visited Australia in July 1993 on holiday, they then decided to return to Australia, this without seeking any advice in New Zealand as to immigration requirements. Even though they sold personalty and travelled to Australia, they still own a home, be it subject to mortgage, in New Zealand. There is no reason, other than a shortage of ready funds and it being contrary to the wishes of Mr Nepia, MS Renata and presumably the children, why the family cannot be reunited in New Zealand. MS Renata must have appreciated that the past convictions of her de facto husband would be of concern to the Australian

a u t h o r i t i e s . The d e c i s i o n to remain i n Aus t ra l ia

a f t e r August 1993 was a d e c i s i o n t h a t she made

herself i n the l i g h t o f a l l the circumstances.

I t i s the v iew o f the Tribunal t h a t the past conduct

o f Kr Nepia, t oge ther w i t h the i n f e r e n c e s t o be drawn from such conduct, i s such a s t o warrant h is b e i n g regarded a s a person n o t o f good charac ter , and i n the absence o f a d i s c r e t i o n v e s t i n g i n the

decision-maker, there would be no h e s i t a t i o n i n the

Tribunal conf i rming the d e c i s i o n under review.

However, it i s apparent from the record t h a t the d e c i s i o n to not grant the a p p l i c a t i o n was one made

w i t h i n a day o r so o f the a p p l i c a t i o n i n f a c t b e i n g

made. MS Renata wrote a le t ter support ing the

a p p l i c a t i o n o f her de f a c t o husband. H e r b ro ther -

in - law wrote a letter r e f e r a b l e t o employment. I t

i s c l e a r t h a t the a p p l i c a t i o n was d e a l t w i th q u i c k l y on charac ter grounds and, a s was acknowledged by Kr Johnson, no a t t e n t i o n was paid t o 'other p o s s i b l e

m a t t e r s ' , t h a t i s , 'whether a l l o f the p u b l i c

i n t e r e s t c r i t e r i a had been f u l f i l l e d ' . The pub l i c

i n t e r e s t requirements , i t was agreed by Kr Johnson,

'had n o t been addressed by the Department'. I t i s

p o s s i b l e t h a t there a r e add i t iona l r e l e v a n t m a t t e r s which have n o t been, and which should be, considered

by the de lega te .

In a l l the circumstances of t k - S caBe,	i t i s the
view o f t h e Tribunal	thac the appropriate course

would be and i s to set a s i d e the d e c i s i o n under

rev i ew and to remi t the a p p l i c a t i o n for f u r t h e r

cons idera t ion by the delegate ."

It is appropriate now to set out the relevant legislative provisions from the Miaration Act 1958 ("the Act") and the	Regulations. The starting point is S. 33 of the Act, which
provides for the making of certain regulations. Section 33 relevantly states:

"33. (1) Without limiting the generality of section

181, the regulations may make provision:

(a) in relation to the granting and refusal of entry permits, including the granting of entry permits:

(i) subject to conditions; or

(ii) subject to a limitation as to the time the holder is authorised to remain in Australia;
(b)	for the recording and evidencing of entry permits;
(c)	in relation to the effect and operation of entry permits; and
(d)	in relation to the cancellation of entry permits that are granted subject to a limitation as to the time the holder is authorised to remain in Australia.

(2) Regulations made under subsection (1) may

provide :

(a)	for different classes of entry permits; and
(b)	that, subject -0 sections 40 an4 45, a person is entitled to be granted an entry permit of a particular class if that person satisfies all the prescribed criteria in relation to that class.

We turn later to the text of the Regulations as they

apply to this litigation. The crucial provision of the Act is
S. 180A. It provides, as material:

"180A (1) The Minister may refuse to grant a visa or an entry permit to a person, or may cancel a valid visa or a valid entry permit 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) ...

(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

(3) The power under this section to refuse to grant a visa or an entry permit to a person, or to cancel a valid visa or a valid entry permit 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 or an entry permit to a person, or to cancel a valid visa or a valid entry permit that has been granted to a person."

Section 180A is to be considered with certain provisions

in Part 2 of the Regulations. These are as follows:

"PART 2 - VISAS AND ENTRY PERMITS

Division 1 - Classes, criteria, conditions etc.

Classes and groups of visas and entry permits that

may be granted

2.1 For the purposes of subsections 23 (2) and 33

(2) of the Act, the classes of visas and entry

permits that may be granted are as set out in

Schedule 1.

Criteria conditions and other provisions applicable to
individual classes of visas and entry permite

(2) For the purposes of subsection 33 (2) of the Act, the prescribed criteria for the grant to a person of an entry permit of a particular class are:

(a)	the criteria applicable to entry permits set out in this Part; and
(b)	in the case of an entry permit granted to a primary person - the criteria set out in the relevant Part of Schedule 2; and
(c)	in the case of an entry permit granted to a secondary person - the criteria set out in the relevant Part of Schedule 3.

D i v i s i o n 5 - E n t r y P e r m i t s

Entitlement to be granted an entry p e d t

2.27 (1) Subject to Divieion 3 of Part 2 of the Act

and to this Division, an applicant is

entitled to be granted an entry permit of a particular class if the person satisfies	the prescribed criteria in relation to
that entry permit.

SCHEDULE 2

Chapter 1.1 Migrant Visas and Entry Permits

Part 100 - Class 100 (Spouse) visa and entry permit ...

100.33 Criteria to be satisfied at time of decision
(visa - before entry) ...

100.337 (1) Each member of the family unit of the applicant who is an applicant for a Class 100 visa is a person who:

(a) satisf ies public j nterest

criteria 4001 to 4004 and 4009;

and

(b) satlsf ies public interest criteria 4007 and 4008, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to those criteria; and

(C) if he or she has previously been in Australia, satisfies special re-entry criteria 5001, 5002, 5004, 5006, 5009 and 5010.

SCHEDULE 4

Public Interest Criteria

4001 (1) The applicant meetc the requirements of

subclause ( Z ) , (3) or (4).

(2) An applicant meets the requirements of this subclause if, after appropriate enquiries, the Minister has decided that there is no evidence of anything that	might justify the refusal, under section	180A of the Act, to grant the visa or
entry permit.

(3) An applicant meets the requirements of this subclause if, after appropriate enquiries and consideration of all available evidence of anything that might justify the refusal, under section 180A of the Act, to grant the visa or entry permit, the Minister has decided that that evidence is insufficient to satisfy the Minister of any of the matters referred to in paragraph (l) (b) and subsection (2) of that section.

(4) An applicant meets the requirements of this subclause if, despite being satisfied that the refusal, under section 180A of the Act, to grant the visa or entry permit is justified, the Minister has decided not to exercise the power under that section to refuse to grant the visa or entry permit. ..."

We now consider the application of the legislation to the particular facts of this case.

The starting point is S. 180A of the Act. Relevantly it provides that the Minister may refuse to grant a visa or an entry permit to a person or may cancel a valid visa or a valid entry permit that has been granted to a person if sub-S. 180A (2) applies to the person. Subsection (2) of S. 180A provides that it applies to a person if the Minister, having regard to the person's past criminal cor.luct, is satisfied that the pereon is not of good character. The Minister by his delegate was so satisfied.

It is next necessary to have regard to some provisions of the Regulations. The public interest criteria to which the Tribunal referred in the course of its decision are provided for in Schedule 4 to the Regulations. The expression "public interest criterion" is defined in reg. 1.3 to mean a criterion set out in a clause of Schedule 4, and a reference to a public interest criterion by number is a reference to the criterion set out in the clause so numbered in that Schedule. There

are other provisions of the Regulations which are relevant in relation to the criteria, but the essential matter for decision in this case arises out of the terms of public interest criteria 4001 (l), (2), (3) and (4) in Schedule 4 to the Regulations. Mr Nepia was required by the Regulations to satisfy these criteria. Effectively this means that the applicant had to demonstrate that he met the requirements of sub-clause (2), (3) or (4) of cl. 4001.

Subclause 4001 (4) provides that an applicant meets the requirements of the sub-clause if despite being satisfied that the refusal under 8. l8OA to grant the visa or entry permit is justified, the Minister has decided not to exercise the power under that section to refuse to grant the visa or entry permit. It i to be observed that, in that respect, the Regulations are consistent with the provisions of S. 180A which confers a discretion on the Minister, notwithstanding a conclusion that circumstances exist which entitle him to

refuse to grant a visa or entry permit, nevertheless to grant it. That discretion is recognised by the public interest

criterion because it says, " . . . if, despite being satisfied

that the refusal, under section 180A of the Act, to grant the visa or entry permit is justified, the Minister has decided not to exercise the power under that section to refuse to grant the visa or entry permit". There is thus an initial question which a decision-maker under S. 180A must address.

That is, if the circumstances provided for in the section exist, as for instance they do in this case by reason of the applicability of sub-S. ( 2 ) , whether to refuse or to grant the visa or entry permit which is in question.

The Minister's delegate decided that he would not grant it. When his Honour came to the matter in the paragraphs of his decision to which we have referred, it seemed, until towards the end, that his Honour had reached a similar conclusion. That appears particularly from the paragraph

which commences, "The third party considerations ...". The

basis upon which his Honour, however, apparently decided to take the course he did is to be found in the second last of the quoted paragraphs. He said that it was apparent from the record that the decision not to grant the application was one made within a day or so of the application in fact being made. He added that it was clear that the application had been dealt	with quickly on character grounds and "as was acknowledged by	Mr Johnson, no attention was paid to 'other possible matters',
that is, 'whether all of the public interest criteria had been fulfilled'".
In my view, upon a fair reading of the material, M r Johnson, who was counsel for the Minister, made these remarks
only against the possibility that, notwithstanding Mr Nepia's criminal record, the Tribunal might take the view that the discretion conferred by S. 180A should be exercised in his
favour .
The error which we think exists in the reasoning process of the Tribunal is as follows. Not having made a decision to exercise its discretion (the Tribunal standing in the place of the decision-maker) to grant the visa despite the criminal conduct which was established, the Tribunal was not able to move on to other public interest criteria.
In other words, what was required was a decision on the question whether it was appropriate to refuse or to grant the visa upon the basis of the provisions of S. 180A read in conjunction with public interest criterion 4001(4). It does not appear that the Tribunal undertook that exercise, but assumed that it could go, or that it might be appropriate for a decision-maker, if the matter went back, to go, to the later
was appropriate to grant the entry permit. We have reached public interest criteria for the purpose of seeing whether it
the conclusion that, in approaching the matter in this way, his Honour, with respect, fell into error because he misdirected himself as to what the statutory framework required. The Tribunal was not empowered itself to move to the later public interest criteria nor to remit the matter for reconsideration in accordance with them because it had not made a decision to grant the entry permit notwithstanding the applicability to the case of the provisions of sub-S. 180A (2) of the Act.
In those circumstances we are of opinion that this appeal muet be upheld. The question that remains is whether we ehould send the matter back to the Tribunal to be heard and determined again or whether we should take the view that the appeal should be allowed, the decision below set aside and the decision made by the delegate affirmed.
We have decided that it is the latter course that we ehould take. We are of that opinion because of the statements made in his Honour'e judgment in the earlier of the quoted paragraph8 which plainly enough ind-<ate that he took the view that the applicant, because of his criminal record and the fact that he fell within the provisions of sub-ss. 180A (1)
considerations, an entry visa. In other words, his Honour did and (2), ought not to be granted, if those were the only
what he did only because he thought it might be that consideration of the later public interest criteria might after all justify the grant of an entry visa. That was not a course which, in the circumstances, was open to him.
We allow the appeal, order that the decision of the Tribunal be set aside and, in lieu thereof, that the decision
of the delegate be affirmed. There will be no order as to the
costs of the appeal.

I certify that this and the preceding fourteen (14) pages are a true copy of the Reasons for

Judgment of the Court.

Associate:

Date:  20 September 1994.

APPEARANCES

Counsel for the applicant:	Mr J. Basten QC and Mr G. Johnson
Solicitor for the applicant:	Australian Government Solicitor
The respondent did not appear.
Date of Hearing:	20 September 1994
Place of Hearing:	Sydney
Date of Judgment:	20 September 1994