Moore v Minister for Immigration and Citizenship
[2007] FCAFC 134
•21 August 2007
FEDERAL COURT OF AUSTRALIA
Moore v Minister for Immigration and Citizenship [2007] FCAFC 134
EVIDENCE – discretion to receive further evidence on the hearing of an appeal
MIGRATION – when does a person cease to be an immigrant – consideration of the process of absorption – different considerations applicable to adults and children – unavailability of s 501(2) of the Act to cancel a visa that has not been granted or taken to have been granted – proper exercise of discretion to cancel a visa where the holder does not pass the character test within the meaning of s 501(6)
PROCEDURAL FAIRNESS – allowance of an adequate time for a response to a notice of intention to consider cancellation of an absorbed person visaHeld: the Minister did not fall into error in cancelling the appellant’s absorbed person visa which was taken to have been granted to him on 1 September 1994
Federal Court of Australia Act 1976 (Cth) s 27
Migration Act 1958 (Cth) ss 20, 34(2), 68(1), 501(2) and 501F
Migration Reform Act 1992 (Cth) s 34
Migration Reform (Transitional Provisions) Regulations 1994 regulations 3(1) and 4(1)
Judiciary Act 1903 (Cth) s 39B
Immigration (Guardianship of Children) Act1946 – 1973 (Cth) s 6Guss v Johnstone [2000] FCA 1455
NASB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 24
WAMB v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 66
Moore v Minister for Immigration and Citizenship [2007] FCA 626
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 230 ALR 370
Johnson v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 494
O’Keefe v Calwell (1949) 77 CLR 261
The Queen v Forbes; Ex parte Kwok Kwan Lee (1971) 124 CLR 168
Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162
Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28
The Queen v Director-General of Social Welfare for Victoria; Ex parte Henry (1975) 133 CLR 369
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273
Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807
Fisher v Minister for Immigration and Citizenship [2007] FCA 1052ANDREW MOORE v MINISTER FOR IMMIGRATION AND CITIZENSHIP
VID 425 OF 2007GYLES, GRAHAM AND TRACEY JJ
21 AUGUST 2007
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
VID 425 OF 2007
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
ANDREW MOORE
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
JUDGES:
GYLES, GRAHAM AND TRACEY JJ
DATE OF ORDER:
21 AUGUST 2007
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appellant’s application for the Court to receive further evidence on the appeal, as contained in the affidavit of Patricia Trezise sworn 1 August 2007, be refused.
2.The appeal be dismissed.
3.The appellant pay the respondent’s costs.
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
VID 425 OF 2007
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
ANDREW MOORE
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
JUDGES:
GYLES, GRAHAM AND TRACEY JJ
DATE:
21 AUGUST 2007
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Background
The appellant is a citizen of the United Kingdom, of Scottish parentage. He was born on 1 May 1966 although a number of documents including a Victoria Police criminal history report have shown his date of birth as 1 May 1968.
The appellant arrived in Australia with his parents, his sister and younger brother in August 1977. On arrival he was granted permanent residency status, presumably by way of a permanent entry permit.
The appellant has an extensive criminal history in Victoria which both pre-dates and post-dates 2 April 1984. The significance of the date 2 April 1984 will emerge shortly. On 22 January 1982 when 15 years of age, the appellant was placed on 18 months’ probation in respect of a number of counts including theft of a motor vehicle, unlicensed driving, burglary, theft, discharge missile/stone to injure/damage and set off fireworks without permission. On 13 January 1984, when aged 17 years, the appellant was fined $100 in the Dandenong Children’s Court, without entry of a conviction, and in default ordered to serve five days at a Youth Training Centre, for using indecent language in a public place. On 27 February 1984 when 17 years of age, the appellant was fined a total of $600 in respect of various offences including assault with weapon, assault occasioning actual bodily harm, unlawful assault and wilfully damaging property.
At the outset of the hearing of the appeal and in support of ground of appeal 1, the appellant made an application for the Court to receive further evidence as contained in an affidavit of Patricia Trezise sworn 1 August 2007. The Court granted the appellant leave to file the affidavit in Court and allowed it to be read provisionally, on the basis that the Court would rule upon its admissibility in its judgment on the appeal.
The appellant’s objective in placing further evidence before the Court was to establish that two convictions recorded in the appellant’s criminal history report as having been entered in the Springvale Magistrate’s Court on 27 March 1985, in fact related to offences of assault occasioning grievous bodily harm and assault with weapon, which the appellant had committed before 2 April 1984. Those convictions resulted in two sentences of imprisonment, one for four months and the other for one month, to be served concurrently with the four month sentence.
The receipt of further evidence on the hearing of an appeal is a matter which lies in the discretion of the Court under s 27 of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court of Australia Act’). The appellant relied upon Guss v Johnstone [2000] FCA 1455 (‘Guss’) at [29]-[33] in respect of the principles to be applied in the exercise of the relevant discretion. In his leading judgment in Guss, with which Justices Drummond and Dowsett agreed, Sackville J relevantly said:
‘30 … Mr Garde did not dispute that, on the construction of s 27 most favourable to the appellant, it is ordinarily necessary for the party seeking to adduce further evidence to demonstrate that the evidence relied on is cogent; that is, the Court exercising appellate jurisdiction needs to be satisfied that the proffered evidence would be likely to have produced a different result had it been available at the trial.
31 That this is so follows from the majority judgment in CDJ v VAJ (1998) 197 CLR 172 (McHugh, Gummow and Callinan JJ; Gaudron and Kirby JJ dissenting). In that case, the High Court was concerned with s 93A(2) of the Family Law Act 1975 (Cth) (“Family Law Act”), the terms of which the majority described (at 198) as “similar” although not identical with those of s 27 of the Federal Court Act.
32 The majority held that the common law principles that had been laid down in cases such as Orr v Holmes (1948) 76 CLR 632 and Wollongong Corporation v Cowan (1955) 93 CLR 435 do not govern the construction of provisions such as s 93A(2) of the Family Law Act and s 27 of the Federal Court Act. In their Honours’ view the narrow common law approach must give way to the language of the legislation. They pointed out (at 200) that the purpose of the statutory power is to ensure that the proceedings do not miscarry. They said this (at 201):
“[o]ne consideration in construing s 93A(2) is its remedial nature, its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose it (sic) to give the Full Court a discretion to admit further evidence to buttress the findings already made”.
33 The majority said that another consideration in construing s 93A(2) of the Family Law Act (and, by implication, s 27 of the Federal Court Act) is that the provision is to be construed liberally, without implied limitations not found in the statutory language (at 201). Even so, the majority considered (at 202-203) that it was
“highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial. … [W]e cannot accept that the discretion to receive further evidence is so wide that the Full Court can admit further evidence merely because it is useful. Such a criterion is inconsistent both with the nature of the appellate jurisdiction exercised by that Court and with the perceived purpose of s 93A(2). (emphasis added).”
34 These observations are consistent with earlier decisions of the Full Court of this Court, which expressed the view that the narrow principles laid down in cases such as Orr v Holmes and Wollongong Corporation v Holmes might not necessarily apply to appeals which concern not merely the immediate parties, but the wider public interest: Totterdell v Nelson (1990) 26 FCR 523, at 529, per curiam; Maddestra v Penfolds Wines Pty Ltd (1993) 44 FCR 303, at 304-305, per curiam.’
The respondent relied upon a joint judgment of Beaumont, Lindgren and Tamberlin JJ in the more recent case of NASB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 24, which was cited with approval by Nicholson J in WAMB v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 66, where their Honours had said at [43]:
‘43 In order for an appellate court to receive further evidence, two conditions must be satisfied: first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different: see, for example, Orr v Holmes (1948) 76 CLR 632 at 635-636 per Latham CJ. The second condition has been variously expressed in the cases, but the point made in all of them is that it is not enough that the new evidence was relevant and otherwise admissible, and may have affected the result. Language referring to, at the lowest, ‘probability’, and at the highest, ‘certainty’, of a different result, has been used: cf R v Copestake; Ex parte Wilkinson [1927] 1 KB 468 at 477 (‘of such importance as very probably to influence the decision’ and ‘of such weight as, if believed, would probably have an important influence on the result’); Orr v Holmes at 636 (‘high degree of probability that the admission of the new evidence would result in a different verdict’); Florance v Andrew (1985) 58 ALR 377 at 381 (‘such a different complexion on the case that a reversal of the former result ought certainly to ensue’); Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 367-368 ((as agreed by the parties) ‘almost certain that, … , an opposite result would have been reached by the primary judge’).’
In this case it is unnecessary to decide whether in the proper exercise of the Court’s discretion to receive further evidence under s 27 of the Federal Court of Australia Act the parties seeking to adduce the evidence must show that the evidence could not, with reasonable diligence, have been adduced at the trial. In our opinion it is clear that evidence of the conviction of the appellant on 27 March 1985 in respect of offences that may have been committed by the appellant before 2 April 1984, with sentences of imprisonment being imposed as indicated above, would not be likely to have produced a different result, had it been available at the trial before the primary judge. Accordingly, we would refuse the application that the Court should receive further evidence on the appeal as contained in the affidavit of Ms Trezise.
The appellant’s most significant criminal offence was one of manslaughter committed in January 2000. The appellant, then referred to as Andrew Derek Moore, pleaded guilty to a count of manslaughter, having previously been charged with murder in respect of the same occurrence, that charge having been withdrawn.
On 26 March 2001 Justice Vincent in the Supreme Court of Victoria imposed a sentence of imprisonment for a period of nine years and fixed a minimum non-parole period of seven years. In his remarks on sentence the Judge said:
‘As far as your background is concerned, I understand that your early years were unremarkable. As far as I am able to assess, you were born into a stable family and were not subjected to abuse or neglect in your early years …
Your family have remained supportive of you and are likely to continue to remain so. However, you commenced to drink alcohol at about the age of fourteen years and soon after became addicted to it. The direction of your life has been heavily influenced by that addiction.
I note that you have made some sporadic attempts to obtain assistance but … you appear to have lacked any real commitment to ceasing alcohol abuse. Nevertheless, you are still a relatively young person, being 34 years of age, and your eventual rehabilitation must be regarded as a significant sentencing consideration.’
When the appellant was 25, he had a child with a lady with whom he then had a relationship, Wendy Gaye Potter. The child, Jason Andrew, was born on 15 February 1992. It would appear that Jason Andrew had two step-brothers and a step-sister, who were children of a prior relationship which Wendy Gaye Potter had with another man before her relationship with the appellant, which itself lasted for only five years. Jason Andrew assumed the surname of his step-brothers’ and step-sister’s father, namely ‘Baxter’, sometimes shown as ‘Moore-Baxter’.
On 15 April 1999 the Family Court of Australia ordered, by consent, that Jason Andrew live with his mother, who was to have the sole responsibility for his day to day care, welfare and development. The orders provided for the appellant and Wendy Gaye Potter to retain ‘joint responsibility for the long term care, welfare and development’ of Jason Andrew. The orders also provided for the appellant to have contact with Jason Andrew on alternate weekends and for half of all school vacations.
Needless to say, the appellant was unable to enjoy the access to Jason Andrew to which he was entitled after his pre-sentence detention and subsequent imprisonment for the manslaughter offence commenced, although the appellant’s mother would appear to have taken Jason Andrew to visit his father in gaol from time to time.
The appellant’s custodial sentence was due to come to an end on or about 4 December 2006, whereupon he was transferred, so it would seem, to the Immigration Detention Centre at Maribyrnong in Victoria, following a purported cancellation by the then Minister for Immigration and Multicultural Affairs of the appellant’s ‘visa’ under s 501(2) of the Migration Act 1958 (Cth) (‘the Act’) on 1 December 2006. It is that cancellation which lies at the heart of the present appeal.
Ground of Appeal No. 1
The first limb of the appellant’s case is that the Minister purported to cancel a visa which the appellant did not hold.
The first ground of appeal was expressed as follows:
‘1.His Honour erred in law by concluding that before 2 April 1984 the Appellant had “ceased to be an immigrant” and therefore, prior to the decision purportedly made by the former Respondent [the Minister at the time] on 1 December 2006 to cancel his visa, the Appellant held an absorbed person’s visa.’
In his reasons for judgment (Moore v Minister for Immigration and Citizenship [2007] FCA 626) the primary judge said at [42] – [44]:
‘42 … the Minister has proceeded throughout upon the basis that Mr Moore had an absorbed person visa as at 1 September 1994, having satisfied the requirements of s 34(2)(b) of the Act [as at 2 April 1984]. That was the stance initially taken by the applicant as well. However, he no longer maintains that position.
43 In effect the only basis put forward in support of the applicant’s contention that he had not ceased to be an immigrant as at 2 April 1984, and did not qualify for an absorbed person visa, was his criminal record as at that date. Whatever may be the merits, or otherwise, of treating a criminal record as an indication that a person has not been absorbed into the community, I am satisfied that Mr Moore’s record, at the relevant time, was by no means so bad as to lead to that conclusion. He was, after all, only 15 years old when the County Court matters were dealt with, and still only 17 at the time of the proceedings in the Oakleigh Magistrates Court. None of the offences led to a custodial sentence. They do not strike me as having been so serious as to warrant the conclusion that the applicant had not ceased to be an immigrant by 2 April 1984.
44 I therefore reject the applicant’s contention that he does not now, and never has, held an absorbed person visa. It follows that the Minister’s decision to cancel that visa operates by law, pursuant to s 501F(3) of the Act, to cancel also his transitional (permanent) visa.’
Section 34 of the Act was inserted by the Migration Reform Act 1992 (Cth), as amended by the Migration Legislation Amendment Act 1994 (Cth), the operation of which commenced on 1 September 1994. It provided:
‘34(1)There is a class of permanent visas to remain in, but not re-enter, Australia, to be known as absorbed person visas.
(2)A non-citizen in the migration zone who:
(a)on 2 April 1984 was in Australia; and
(b)before that date, had ceased to be an immigrant; and
(c)on or after that date, has not left Australia, where left Australia has the meaning it had in this Act before 1 September 1994; and
(d)immediately before 1 September 1994, was not a person to whom section 20 of this Act as in force then applied;
is taken to have been granted an absorbed person visa on 1 September 1994.
(3)Subdivisions AA, AB, AC (other than section 68), AE and AH do not apply in relation to absorbed person visas.’
Under s 68(1) of the Act an absorbed person visa had effect as soon as it was granted.
Section 20 of the Act, immediately before 1 September 1994, was concerned with persons who were then the subject of deportation orders. It had no application to the appellant.
Neither the word ‘immigrant’ nor the expression ‘ceased to be an immigrant’ as used in s 34(2)(b) of the Act were defined in the Act.
The history and reach of s 34 was explained by Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (‘Nystrom’) (2006) 230 ALR 370 at [18] – [22].
On 21 July 1994 the Governor-General, acting with the advice of the Federal Executive Council made the Migration Reform (Transitional Provisions) Regulations 1994 (Cth) under the Act and the Migration Reform Act1992 (Cth). Regulation 4(1) of those Regulations provided:
‘4(1)… if, immediately before 1 September 1994, a non-citizen was in Australia as the holder of a permanent entry permit, that entry permit continues in effect on and after 1 September 1994 as a transitional (permanent) visa that permits the holder to remain indefinitely in Australia.’
By regulation 3(1) ‘permanent entry permit’ was defined to mean ‘an entry permit the effect of which is not subject to a limit as to time but does not include an entry visa that is operating as an entry permit’.
The nature of the visa held by the appellant was adverted to in paragraph 4 of the primary judge’s reasons as follows:
‘4 It is a matter of contention between the parties as to which type of visa the applicant held from 1 September 1994, being the date on which the Migration Reform (Transitional Provisions) Regulations 1994 (Cth) came into effect. [It may also be observed that it was also the day on which s 34 of the Act came into effect.] The applicant submits that pursuant to those Regulations he was granted a transitional (permanent) visa. The Minister submits that whilst those Regulations had the effect of continuing the applicant’s permanent residency status, pursuant to s 34 of the Act the applicant was also deemed to have been granted an absorbed person visa. That was on the basis that he had been a non-citizen in the migration zone prior to 2 April 1984, and before that date had “ceased to be an immigrant”.’
At [6] of his reasons for judgment the primary judge said:
‘6 By letter dated 29 June 2006, addressed to him at the Fulham Correctional Centre, the applicant was served with a notice of intention to consider cancellation of his absorbed person visa. In that letter he was also informed that if a decision were made to cancel his absorbed person visa, s 501F(3) of the Act would operate to automatically cancel his transitional (permanent) visa as well. …’
In the then Minister’s Statement of Reasons for her decision to cancel the visa of the appellant (therein referred to as ‘Andrew Derrick (sic) Moore’) under s 501(2) of the Act the visa was mentioned in paragraphs 3 and 33 as follows:
‘3Having found that Mr MOORE does not pass the character test, I carefully assessed all of the information set out in the Issues Paper and considered whether to exercise my discretion to cancel Mr MOORE’s visas. … I determined whether each of the relevant considerations weighed in favour or against exercising my discretion to cancel Mr MOORE’s visa under section 501(2).
…
33.Having given full consideration to all of these matters, I decided to exercise my discretion to cancel Mr MOORE’s visa under s501(2).’
(emphasis added)
The Minister also made references to ‘Mr MOORE’s visa’ or ‘his visa’ in paragraphs 11, 16, 20, 25 and 30 of her Statement of Reasons.
Although the Minister referred on one occasion to the appellant’s visas (plural) in paragraph 3 of her Statement of Reasons, it is clear that she was addressing the cancellation of the absorbed person visa he was taken to have been granted on 1 September 1994 and which came into effect on that day, assuming, of course, that the appellant had come within the reach of s 34(2)(b) of the Act before 2 April 1984 (cf Johnson v Minister for Immigration and Multicultural and Indigenous Affairs (‘Johnson’) (2004) 136 FCR 494 at [30]). She was not required to have regard to the consequences of her decision in respect of the appellant’s absorbed person visa upon his transitional (permanent) visa (see Nystrom at [41] per Gummow and Hayne JJ and at [126]-[129] per Heydon and Crennan JJ, with whom Gleeson CJ agreed, at [1]).
On 13 July 2006 the appellant had signed a written ‘Appointment of authorised recipient’ in which he authorised the Minister to send all written communications about his ‘application’ to Patricia Trezise of Victoria Legal Aid, a lawyer at the Gippsland Regional Office of that organisation and the deponent of the 1 August 2007 affidavit.
By a letter dated 29 June 2006 to the appellant, Russell Collins, from the Character Section of the Department, said, amongst other things:
‘Your visas
You are currently the holder of a transitional (permanent) visa.
Your transitional (permanent) visa was granted to you on 1 September 1994 under the Migration Reform (Transitional Provisions) Regulations [the Regulations did not provide for a “grant”. Rather they provided for an “effect”]. …
…It has been determined that you would have been granted an absorbed person visa on 1 September 1994 and that you continue to hold that visa now.
…’The heading of this letter was ‘NOTICE OF INTENTION TO CONSIDER CANCELLATION OF YOUR ABSORBED PERSON VISA UNDER SUBSECTION 501(2) OF THE MIGRATION ACT 1958’.
On 11 July 2006 Patricia Trezise, the appellant’s authorised recipient, wrote to Mr Collins at the Department stating, amongst other things:
‘Mr Moore has handed to me your letter of the 29th of June 2006.
His earliest release date is the 4th of December 2006 and I therefore ask if I could have an extension of approximately six weeks for the preparation of submissions on behalf of Mr Moore. …’
By letter dated 18 July 2006 Mr Collins responded to Ms Trezise’s letter stating, amongst other things:
‘It is agreed that Mr Moore may have an extension of this period from 24 July 2006 until 21 August 2006.’
By letter dated 16 August 2006 Ms Trezise responded to Mr Collins’ letter dated 29 June 2006 and enclosed a number of documents including the appellant’s 12 page manuscript letter ‘in reply to your recent notification that you are considering deporting me back to Scotland on the grounds that I fail a charecter (sic) test’.
Ms Trezise’s covering letter included:
‘I refer to your letter dated the 29th of June 2006 wherein you concede that Mr Moore can be taken to hold on (sic) an absorbed person’s visa as from the 1st of September 1994. I write in support of Mr Moore’s desire to remain in Australia and to continue to hold the relevant visa.
In two letters to Ms Trezise from the Character and Cancellations Section of the Department of Immigration and Multicultural Affairs dated respectively 1 December 2006 and 7 December 2006 and expressed in identical terms, Ms Trezise was informed that:
‘the Minister has decided to cancel your (sic) absorbed person visa pursuant to subsection 501(2) of the Act.’
It would appear that a copy of the Minister’s Statement of Reasons dated 1 December 2006 was forwarded to the appellant on or about 7 December 2006. This may explain the transmission to Ms Trezise of the two identical communications. In each of them the following words appeared:
‘I will soon forward a copy of the decision record that sets out the reasons for the decision …’
Perhaps, the second letter included the copy of the Statement.
In the appellant’s original Application under s 39B of the Judiciary Act 1903 (Cth) filed 13 December 2006, the appellant provided particulars of the grounds relied upon by him which included:
‘iii)The Minster (sic) failed to take relevant considerations into account namely:
(1)the type of visas held by the applicant and the fact that he was granted a s 34 absorbed person visa by operation of law and by reference to his status and that of his parents as absorbed persons;
(2)the fact that the applicant has ceased to be an immigrant and was beyond the reach of the immigration power;’
The appellant resiled from the assertion in his Application that he had been an absorbed person as at 2 April 1984. In his Amended Application dated 5 March 2007, his ground 1 was expressed as follows:
‘1.The Applicant was at the time of the decision of the Respondent not the holder of an absorbed person’s visa; rather he was the holder only of a transitional (permanent) visa which was not cancelled by the decision of the Respondent nor taken to be cancelled by operation of sub-s.501F(3).’
(emphasis added)
In dealing with ground 1 the primary judge summarised the appellant’s submission at [27] as follows:
‘27 The applicant submitted that he had not “ceased to be an immigrant” because he had, as at 2 April 1984, accumulated a substantial number of convictions for serious offences which were antithetical to his having been absorbed into the community.’
See also [43] as quoted above.
Two questions relevantly arise. The first is, was the appellant taken to have been granted an absorbed person visa in accordance with s 34(2) of the Act on 1 September 1994? Secondly, if the appellant was not the holder of an absorbed person visa as at 1 December 2006, but only a person whose permanent entry permit had continued in effect on and after 1 September 1994 as a transitional (permanent) visa in accordance with regulation 4(1) of the Migration Reform (Transitional Provisions) Regulations 1994 (Cth), was the Minister’s cancellation on 1 December 2006 of the appellant’s ‘visa under s 501(2)’ of the Act effective as a cancellation of his transitional (permanent) visa?
In addressing the first question it is necessary to consider the process whereby a non-citizen in the migration zone ceases to be an immigrant within the meaning of s 34(2)(b), and whether the process whereby a child ceases to be an immigrant is the same as that by which an adult ceases to be an immigrant.
Before proceeding further it is appropriate to note the terms of s 501 pursuant to which the then Minister purported to act and also s 501F to which reference has been made:
‘501 …
(2)The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
…
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
Otherwise, the person passes the character test.
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
501F(1) This section applies if the Minister makes a decision under section 501 … to cancel a visa that has been granted to a person.
…
(3)If:
(a)the person holds another visa; and
(b)that other visa is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection;
the Minister is taken to have decided to cancel that other visa.
…’
There have been no relevant regulations under s 501F(3)(b).
It may be observed that the power conferred on the Minister by s 501(2) of the Act to ‘cancel a visa’ applies only to visas that have been ‘granted to a person’. An absorbed person visa is one that, by virtue of s 34(2) of the Act is ‘taken to have been granted’ and, accordingly, a visa which could be cancelled by the Minister in accordance with s 501F(2) of the Act.
By regulation 4(1) of the Migration Reform (Transitional Provisions) Regulations 1994 (Cth) a person may be taken to be a ‘holder’ of a transitional (permanent) visa without there having been a ‘grant’ or deemed grant of such a visa. Regulation 4(1) simply provides for a permanent entry permit to continue in effect as such a visa.
Section 501F(3) operates in respect of other visas ‘held’ by a person in circumstances where a visa ‘granted’ to that person has been cancelled under s 501. It may be seen that a decision by the Minister to cancel an absorbed person visa granted to the appellant would have the effect of cancelling a transitional (permanent) visa held by the appellant, but this process of cancellation could not operate in reverse. The appellant’s transitional (permanent) visa could not have been the subject of a valid cancellation by the Minister under s 501(2) of the Act. The fact that transitional (permanent) visas were not ‘granted’ or taken to be granted was not raised in Nystrom.
In O’Keefe v Calwell (1949) 77 CLR 261, a case under the Immigration Act 1901 – 1940, Latham CJ said at 277:
‘Immigration into a country, if completed, involves two elements, (a) entry into the country, and (b) absorption into the community of the country.’
This passage was cited with approval by Barwick CJ in his leading judgment in The Queen v Forbes; Ex parte Kwok Kwan Lee (1971) 124 CLR 168 at 172.
In Re Minister for Immigration and Multicultural Affairs; Ex parte Te (‘Te’) (2002) 212 CLR 162 at [26] Gleeson CJ said:
‘The concept of absorption into the Australian community, vague as it may be, has been developed as a method of indicating that the activity of immigration in which a person has engaged has come to an end. …’
In Te Callinan J said at [227]:
‘… A relevant meaning of “absorb” is to become part of, to cease to exist apart from. To be absorbed, a person must fit into, live in the community, and seek to make himself a member of the community, and to participate in the lawful activities of it. Committing serious crimes against the community, and, as a result, becoming liable to spend, and spending substantial periods in prison are the antithesis of these.’
(footnote omitted)
In relation to the question of absorption into the community French J said in Johnson at [45]-[46]:
‘45 The general statements made about the concept of absorption offer little in the way of practical guidance for determining whether a person has become part of the community, either as an adult or as a minor who comes in with a family unit. In Koon Wing Lau v Calwell, Dixon J said (at 577):
... there does not appear to be any general agreement as to the tests for the application of this very vague conception.
The word “absorption” is an evaluative metaphor which invites consideration of a variety of factors relevant to its application. It is important to bear in mind also that it is a metaphor used in aid of the resolution of a question of constitutional fact, namely whether the person to whom it is applied has ceased to be an immigrant. The metaphor must not obscure the primary question.
46 Having regard to the primary question, factors relevant to whether a person has become a member of the Australian community in the way that that concept was discussed in Potter v Minahan might be thought to include the following:
1.The time that has elapsed since the person's entry into Australia.
2.The existence and timing of the formation of an intention to settle permanently in Australia.
3.The number and duration of absences.
4.Family or other close personal ties in Australia.
5.The presence of family members in Australia or the commitment of family members to come to Australia to join the person.
6.Employment history.
7.Economic ties including property ownership.
8.Contribution to, and participation in, community activities.
9.Any criminal record.
This list of factors is plainly not exhaustive. Rather, it illustrates the multi-dimensional character of the judgment involved. It is also necessary in making that judgment to avoid narrow mono-cultural assumptions about what constitutes membership of the Australian community. This may not always make the judgment an easy one -- see generally D Wood, “Deportation, The Immigration Power and Absorption into the Australian Community” (1986) 16 Fed Law Rev 288.’
We would incline to the view that, in respect of an adult, absorption occurs when there has been an acceptance of the Australian way of life and a recognition that those who live in Australia are subject to and expected to comply with the laws of the land. Absorption contemplates an integration of the person, who arrived as an immigrant, into Australian society. It may well require an ability or, at least, a desire to communicate in the English language.
A person’s criminal record will be a relevant consideration but, in most cases it will not be determinative on the question of whether a person has been absorbed into the Australian community. Of less significance will be matters such as an addiction to alcohol that may have been brought on by childhood experiences in dealing with other people.
In Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at [183] Callinan J opined that a person did not need to be an adult before that person could be absorbed into the Australian community.
In The Queen v Director-General of Social Welfare for Victoria; Ex parte Henry (1975) 133 CLR 369 the High Court had under consideration s 6 of the Immigration (Guardianship of Children) Act1946 – 1973 (Cth). That case required consideration of whether s 6 was beyond the legislative power of the Parliament. It is unnecessary to quote the section in full. Suffice it to say that it provided for the Minister to be the guardian of every unaccompanied immigrant child who arrived in Australia after the commencement of the Act until the child, generally speaking, reached the age of 21 years.
In the result, the relevant provision was held to be valid.
At 372 Barwick CJ said:
‘It is implicit in a law made under s. 51 (xxvii.) that, in default of express provisions to the contrary, it does not reach to control a person who has entered as an immigrant beyond the time at which that person ceases to be an immigrant, e.g. by absorption into the Australian community as a member thereof.’
At 374 Gibbs J, as his Honour then was, said:
‘In my opinion s. 6 on its proper construction does not extend to children who have become a part of the people of Australia, and so construed the section is valid. It is true that it may be difficult in an individual case to determine when the section ceases to apply …’
At 382 Mason J, as his Honour then was, said:
‘Section 6 is expressed to apply until the child reaches the age of twenty-one, leaves Australia permanently or until the provisions of the Act cease to apply to and in relation to the child, whichever first happens. Although the section makes no explicit reference to a child ceasing to possess the character of an immigrant, the reference to the provisions of the Act ceasing to apply should, I think, be understood as embracing any situation in which a child, formerly an immigrant, passes beyond the reach of the constitutional power. Thus, if a child, on becoming absorbed into the Australian community, passes beyond the reach of the power, the Act would cease to apply to or in relation to the child. Quite apart from this express limitation which is to be found in the statutory definition I should have thought that s. 6 would require to be read as having an application to children only so long as they are immigrant children.’
The absorption of children into the Australian community will be very much influenced by the absorption or otherwise of their parents. If (say) a boy entered Australia with his parents and his siblings, as an immigrant, when only one month old, different considerations would apply to deciding the question of his absorption than those which would apply if (say) a boy entered Australia as an immigrant with his parents and siblings when he was already 17 years of age. For an example of the former category see Nystrom where it had been agreed between the parties, but not decided by the Court, that Mr Nystrom had been absorbed into the Australian community by the time he was ten and a half years of age (see at [18], [75] and [92]). Shortly thereafter he embarked on a life of crime.
Absorption, to be complete, will invariably require the passage of a considerable period of time. However, once complete, the absorption would be irreversible. A person could not, by a process of absorption, cease to be an immigrant and then, as a result of a later occurrence, become an immigrant once again.
In relation to the time required for absorption, it will inevitably be different from case to case. One relevant consideration would, no doubt, be the opportunity that exists for the absorption process to take place. If (say) a person spent 15 years in Australia, but 14 of those were spent in jail, one could hardly imagine that the process of absorption into the Australian community had taken its course.
In relation to the absorption of children French J said in Johnson at [47]:
‘[47] In the case of a child coming to Australia as part of a family unit it is necessary to apply the judgment about membership of the community to the child’s parents or other adult guardians or carers with whom he or she has come and with whom he or she lives. At the time relevant to the present case Mr Johnson was aged nine years. It is therefore necessary to have regard to the evidence about his parents’ migration to, and settlement in, this country and their position in April 1984.’
The lack of absorption of adults into the Australian community would not necessarily deny a finding that their children had been absorbed.
It is difficult to imagine that a child, who arrived in Australia in 1977 at the age of 11 with his Scottish parents, sister and younger brother, had not, by 2 April 1984, when he had reached the age of 17 years and 11 months, having lived exclusively in Australia throughout the preceding almost 7 years, been educated at schools in Australia and entered the workforce in Australia, been absorbed into the Australian community.
In the instant case, there seems little doubt that by 2 April 1984, the appellant’s parents and siblings had ceased to be immigrants, they having been absorbed into the Australian community.
We are of the opinion that the appellant had, in all the circumstances, himself been absorbed into the Australian community well before 2 April 1984. The fact that he may have gone off the rails along the way is quite a different thing from a rejection by him of the Australian way of life and all that that entails. We agree with the primary judge that the appellant’s record as at 2 April 1984 was not, as had been submitted by him, such as to lead to a conclusion that he had not been absorbed into the Australian community. As indicated above, further evidence that may have established that two convictions entered after 2 April 1984 which lead to the imposition of sentences of imprisonment of four months and one month, to be served by the appellant concurrently, related to offences that were committed before 2 April 1984, would not be likely to have produced a different result.
The appellant was the holder of an absorbed person visa as at 1 December 2006 which was taken to have been granted to him on 1 September 1994 in accordance with s 34(2) of the Act.
Accordingly, ground of appeal number 1 fails.
Ground of Appeal No. 2
The second ground of appeal was expressed as follows:
‘2His Honour erred in law by failing to conclude that the former Respondent had failed to exercise the jurisdiction conferred by s.501(2) of the Act, or alternatively acted in excess of jurisdiction, by failing to take into account as a primary consideration, or at all, the best interests of Jason Andrew Moore, the child of the Appellant.’
In his reasons for judgment the primary judge said at [47] and [50] – [52]:
‘47 It was submitted on behalf of the applicant that the Minister must have paid only lip service to the best interests of the child, otherwise she would not have come to the decision that she did. In support of that submission counsel referred to Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133. There the Full Court held that the Administrative Appeals Tribunal had failed to treat the best interests of the children as a “primary consideration” in its determination.
…50 Counsel for the applicant relied, in particular, upon the following extract from the Full Court’s judgment in Wan (at [32]):
“An identification by the Tribunal of what the best interests of Mr Wan’s children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan’s children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.”
51 In my view, there is nothing in this passage which supports the applicant’s claim. The balancing process described above accords precisely with the approach that the Minister herself adopted.
52 In truth, Ground 2, and the applicant’s submissions in support of that ground, seek merely to have this Court engage in merits review. That the Court cannot do.’
Counsel for the appellant submitted that the Minister’s decision was colourable. It was said that whilst the Minister’s decision showed an adherence to principle, there had been no application of the principle in substance.
The problem with the appellant’s submission in this regard is that it proceeded upon a misconstruction of what had been said by Branson, North and Stone JJ in their joint judgment in Wan v Minister for Immigration and Multicultural Affairs (‘Wan’) (2001) 107 FCR 133 at [32] which, in large part, had been drawn from the judgment of Mason CJ and Deane J in Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 at 291 – 292. The appellant’s case was argued as if the best interests of the appellant’s son had to be the primary consideration as opposed to a primary consideration. The Minister plainly gave primary consideration, firstly, to the protection of the Australian community, taking into account the seriousness and nature of the appellant’s conduct, the likelihood that such conduct might be repeated and general deterrence, secondly, to the expectations of the Australian community and, thirdly, to the best interests of the appellant’s son who was then 14 years old and an Australian citizen.
In her statement of reasons the Minister said at [25]:
‘25I believe that it would be in the best interests of Mr MOORE’s son for Mr MOORE to remain in Australia. The information relevant to this consideration weighs against cancelling Mr MOORE’s visa. I gave great weight to this consideration.’
It is apparent that the Minister addressed a range of matters including those set out in Direction No. 21 under s 499 of the Act. In her Statement of Reasons she said that whilst she was not bound by the Ministerial Direction she had proceeded in accordance with it, giving weight to each of the relevant considerations. She ultimately concluded that those considerations which weighed in favour of cancelling the appellant’s visa outweighed all other considerations.
We agree that the approach taken by the Minister accorded precisely with that indicated as appropriate in the passage from Wan upon which the appellant relied.
As Heydon and Crennan JJ, with whom Gleeson CJ agreed, said in Nystrom at [126] and [128]:
‘[126] The discretion to cancel a visa conferred upon the Minister under s 501(2) of the Act is unfettered in its terms. In Sean Investments Pty Ltd v MacKellar Deane J said:
... where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards.
…
[128] Parliament has left it to the Minister to decide the matters which are relevant to whether a person who fails the character test should be permitted to remain in Australia. …’
(footnotes omitted)
In considering the protection of the Australian community, one of the factors which the Minister took into account was the likelihood that the appellant’s conduct might be repeated. The Minister paid regard not only to the appellant’s conviction for manslaughter, but also to his convictions for numerous other offences, being assault and injury offences, property offences, weapons offences, drug related offences and traffic offences. Having regard to the appellant’s criminal history, the Minister expressed her belief that the appellant could be considered to be a recidivist. The Minister also had regard to the appellant’s history of substance abuse whilst incarcerated, before stating her belief that there was a chance that the appellant may re-offend. In addressing her discretion under s 501(2) of the Act she gave moderate weight to the chance that the appellant may re-offend. By so doing her discretion did not miscarry.
In paragraph 24 of her Statement of Reasons, dealing with the best interests of Jason Andrew, the Minister said:
‘24… I have also considered the possibility that MR MOORE may re-offend and the negative effect on Mr Moore’s son if this were to occur.’
The appellant has submitted that this observation by the Minister undermined the Minister’s consideration of the interests of Jason Andrew as a primary consideration. In the appellant’s written submissions it was put:
‘Although such a matter may be taken into account, an assessment of the likelihood of re-offending is needed to demonstrate that there is likely to be an adverse impact on the child in the future. Otherwise, as here, taking into consideration of the possibility of re-offending undermines the weight given to this consideration, rendering it being given less than primary consideration (sic).’
This submission does not bear analysis. It is clear that when the Minister addressed the risk of recidivism, she did not, as submitted, fail to make an assessment of the likelihood of the appellant re-offending.
Ground of appeal number 2 fails.
Ground of Appeal No. 3
The third ground of appeal was expressed as follows:
‘3His Honour erred in law by failing to conclude that the former Respondent had failed to accord to the Appellant procedural fairness by refusing on or about 11 August 2006 to allow to the Appellant a further extension of the time in which to respond to a notice of intention to consider cancellation dated 29 June 2006, despite the illness and hospitalisation of the lawyer who was then assisting the Appellant with his proposed response.’
As indicated in the letter from the Department to the appellant dated 29 June 2006 referred to at [29] above, the appellant was invited to provide information and comments in relation to:
‘ ● whether you fail the character test; and
●whether your visa [referring to the appellant’s absorbed person visa] should be cancelled.’
The letter called for a response by close of business on 24 July 2006.
As indicated at [30] – [31] above, on 11 July 2006 Ms Trezise sought an extension of approximately six weeks for the presentation of submissions on the appellant’s behalf, which was granted by Mr Collins of the Department’s reply of 18 July 2006 to Ms Trezise.
A file note generated by Mr Collins on 1 August 2006 recorded that Ms Trezise’s assistant at Victoria Legal Aid had spoken with him by telephone on that day indicating that Ms Trezise had been admitted to hospital and that it was uncertain as to when she would be able to resume work. A further extension of the time allowed for the preparation of submissions on the appellant’s behalf was sought, but refused.
As it transpires the appellant had from about 5 July 2006 until 21 August 2006 to provide information and comments in respect of the matters identified in the letter from Mr Collins of the Department to the appellant of 29 June 2006.
It so happens that Ms Trezise was back at work and able to respond to Mr Collins’ letter of 29 June 2006 some five days before the time for a response expired. In her letter dated 16 August 2006 there was no indication that the appellant or, for that matter, herself as the appellant’s authorised recipient, had had insufficient time to place before the Minister all the information and comments which the appellant or Ms Trezise desired to present.
As the primary judge correctly observed, a further opportunity was afforded to the appellant to provide information that he considered should be taken into account when a decision was made as to whether his absorbed person visa should be cancelled or not, in response to Mr Collins’ further letter of 12 October 2006. That letter itself sought a response by 26 October 2006. By a letter dated 24 October 2006 Ms Trezise responded on the appellant’s behalf to the letter of 12 October 2006. Once again, there was no indication that in responding, as she did, either Ms Trezise or the appellant was deprived of a reasonable opportunity to provide information or comments for the Minister’s consideration.
In support of the alleged denial by the Minister of procedural fairness for the appellant, reliance was placed upon the decision of Allsop J in Sales v Minister for Immigration and Multicultural Affairs (‘Sales’) [2006] FCA 1807. In Sales the Minister had purported to cancel the applicant’s absorbed person visa and transitional (permanent) visa on 23 August 2006 pursuant to s 501(2) of the Act. In that case a seven page letter together with annexures had been hand-delivered to the applicant on 8 August 2006 informing him that he was liable to the possibility of visa cancellation and deportation. Allsop J ordered that a writ of certiorari issue in respect of the Minister’s decision of 23 August 2006 purporting to cancel the applicant’s visas. At [31] – [36] his Honour said in respect of the invitation that had been extended to respond to the letter delivered on 8 August 2006:
‘31 … looking at the matter from the perspective of the nature of the power, its consequences and the personal circumstances of the applicant, procedural fairness required an objectively adequate opportunity for the applicant to deal with the task before him. The task was a considerable one. It was, objectively, one, at least, to address all aspects of direction number 21.
32 Whether or not the applicant took advantage of the time given to him or whether he would have taken advantage of any longer period of time given to him is not the point. As I have sought to identify, this man was faced with the task of persuasion of the Department or the Minister as to why he should not be deported in circumstances through the lens of the protection of the Australian community, the lens of the expectations of the Australian community and any relevant international obligations of Australia, including those dealing with children and family. He had been in prison for much of his adult life. He was still in prison. The 14 day period was, in my view, plainly inadequate for him to address the task before him.
33 I do not identify any rule that requires any particular length of time. However, in my view, to give a person in this man's position 14 days to put such material as he wanted to put before such a decision was made by reference to such criteria was not fair; it was not a fair opportunity for him and those with whom he might consult, being his family, not only to prepare the kinds of personal reflections that they did, but to consider whether that material should not be supplemented by professional assistance.
…36 In my view, 14 days for this man … was not fair and was not procedural fairness (sic). In my view, the decision of the respondent made on 23 August 2006 was made without providing the applicant with an adequate opportunity to be heard.’
Counsel for the respondent drew the Court’s attention to a recent decision of Branson J in Fisher v Minister for Immigration and Citizenship [2007] FCA 1052 in which her Honour distinguished Sales. However, the factual matrix in Fisher was quite different from that in Sales. In Fisher a delegate of the Minister had cancelled the applicant’s visa on character grounds. The Administrative Appeals Tribunal had affirmed that decision. Her Honour said at [9] – [10]:
‘9 The applicant …, perhaps faintly, contended that he was denied procedural fairness because he was given only a 21 day period to respond to the notice of intention to cancel his visa. …
10 The present case is plainly distinguishable from Sales. First, as mentioned above, the applicant was given approximately 21 days to respond to the notice of intention to cancel his visa and he has not given evidence that this time proved inadequate. Secondly, and more importantly, the decision to cancel the applicant’s visa was reviewed and affirmed by the Tribunal. … Understandably, no contention was advanced that the applicant did not have adequate time to prepare his case for presentation to the Tribunal. The powers of the Tribunal on review of the decision of the delegate render immaterial any deficiency in the notice of intention to cancel the applicant’s visa.’
Unlike Sales, an objectively adequate opportunity was granted to the appellant in this case to deal with the task before him, i.e. to respond to the ‘NOTICE OF INTENTION TO CONSIDER CANCELLATION OF YOUR ABSORBED PERSON VISA UNDER SUBSECTION 501(2) OF THE MIGRATION ACT 1958’. An allowance of almost 7 weeks, compared with 2 weeks in the case of Sales, was fair.
We agree with the primary judge that the appellant was given ample opportunity to respond to the notice of intention to consider cancellation of the appellant’s absorbed person visa under s 501(2) of the Act. The appellant was not denied procedural fairness.
Ground of appeal number 3 also fails.
In the circumstances, the appeal should be dismissed with costs.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gyles, Graham and Tracey. Associate:
Dated: 21 August 2007
Counsel for the Appellant: G M Hughan Solicitor for the Appellant: Erskine Rodan & Associates Counsel for the Respondent: W S Mosley Solicitor for the Respondent: Clayton Utz Date of Hearing: 2 August 2007 Date of Judgment: 21 August 2007
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