Nystrom v Minister for Immigration
[2005] FMCA 305
•16 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NYSTROM v MINISTER FOR IMMIGRATION | [2005] FMCA 305 |
| MIGRATION – Application for judicial review of decision by Minister to cancel visa under s.501(2) Migration Act 1958 (Cth) – whether applicant ceased to be an immigrant by reason of a grant of a Transitional (Permanent) visa – whether applicant ceased to be an immigrant by reason of a grant of an absorbed person visa – operation of law – character test – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.34, 82(2), 475A, 501, 501F
Judiciary Act 1903 (Cth), s.39B
Migration Legislation Amendment Act 1994 (Cth)
Migration Reform (Transitional Provisions) Regulations 1994 (Cth), reg 4(1), 3
Second Reading Speech, Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998, Vol H of R 223, (1998), 1229ff.
Eatts v Dawson (1990) 21 FCR 166
Kaushal Sharma v Minister for Immigration and Multicultural and Indigenous Affairs [1997] 1050 FCA
Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 389
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
Johnson v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 137
| Applicant: | STEFAN NYSTROM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 1604 of 2004 |
| Delivered on: | 16 March 2005 |
| Delivered at: | Melbourne |
| Hearing Dates: | 23 February & 10 March 2005 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicant: | Ms de Ferrari |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondent: | Dr S. Donaghue |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDER
The application is dismissed.
The applicant to pay the costs of the respondent as agreed or failing agreement upon determination made upon application to the chambers of Federal Magistrate Hartnett.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules2001 the Court certifies that it was reasonable for the parties to employ an advocate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1604 of 2004
| STEFAN NYSTROM |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision made by the respondent on 12 August 2004 to cancel the applicant's visa pursuant to section 501 of the Migration Act 1958 (Cth) (the Act).
The application was filed 8 December 2004 and made under section 39B of the Judiciary Act 1903 and section 475A of the Act. That application was amended by the filing of an amended application on 4 February 2005. The grounds of the application are as set out in paragraph 1 wherein it is alleged that the respondent acted beyond the jurisdiction of the Act in cancelling the applicant's visa, the particulars of application being:
1)The Minister cancelled the wrong visa class of the applicant;
2)The applicant, by virtue of section 34 of the Migration Act 1958 was in possession of an alternate visa category that has not been considered or cancelled by the Minister;
3)The decision involved an error of law being an error involving an incorrect interpretation of the applicable law;
4)The Minister exceeded jurisdiction by failing to identify the correct visa held by the applicant;
5)Alternatively, the Minister failed to take relevant considerations into account namely:
a)the type of visa held by the applicant and the fact that he was granted a section 34 absorbed person visa by operation of law and by reference to his status and that of his parents as absorbed persons;
b)the fact that the applicant had ceased to be an immigrant and was beyond the reach of the immigration power;
6)Alternatively, the decision was so unreasonable that no reasonable decision-maker could have arrived at it in that the effect of the decision was completely disproportionate to the proper exercise of the power in circumstances where:
a)the applicant had arrived in Australia at 27 days;
b)he has not left Australia;
c)his parents had at the time of his arrival in Australia made a decision to permanently migrate to Australia;
d)he has at all times treated Australia as his home;
e)he has no ties with Sweden.
This argument (of unreasonableness) was not pursued by Counsel for the applicant in submissions before me. It could not have succeeded.
The applicant relied upon an affidavit of Brit Nystrom, the mother of the applicant, sworn 4 February 2005 paragraphs 1 to 10 inclusive of that affidavit. Paragraphs 11 to 19 inclusive were objected to by the respondent as evidence being not properly admissible. The applicant did not seek to rely upon those paragraphs as a consequence.
The respondent relied upon an affidavit of Anthony David Fels, Solicitor, who has the care and conduct of the proceedings for the respondent, that affidavit being affirmed on 23 February 2005.
Section 501(2) of the Act provides that the Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that he or she passes the character test.
The character test is defined in section 501(6) and (7) of the Act. The applicant had been sentenced to lengthy terms of imprisonment for offences, including aggravated rape on a 10‑year old boy and armed robbery. The applicant's challenge to the Minister's exercise of her discretion under section 501(2) is made in circumstances where the Minister's discretion was clearly enlivened.
History
The applicant's mother was born in Finland and with her parents and two brothers immigrated to Sweden in 1950. She gained Swedish nationality in 1950 and presently has permanent residency in Australia. Her husband, from whom she is now divorced, was born in Sweden. The applicant's mother and her husband, from whom she is now divorced, had two children, a daughter and the applicant. The applicant was born on 31 December 1973 in Sodertalje in Sweden. The applicant's parents migrated to Australia in 1966. The applicant's parents took up residence in East Bentleigh. Their first child, a daughter, was born in Australia, and whilst pregnant with their second child, the wife and her daughter travelled to Sweden for a holiday in July 1973. When it became clear that it would be difficult for the applicant's mother to travel, being far advanced in her pregnancy, she decided to extend her overseas trip to enable her to give birth to the applicant in Sweden. During the period when the applicant's mother and his sister were in Sweden, the applicant’s father remained in Australia.
The applicant's mother commenced to return to Australia on 25 January 1974. She had contacted the Australian Embassy in Sweden and was able to obtain a Swedish passport for her son who had permission to travel to Australia. The applicant was 25 days old when he travelled on the Swedish passport issued to him and was immigration cleared in Australia. He was 27 days old when he entered Australia. He was met by his father, which was the first time the father had seen his son. The applicant's mother deposed to her son having never learnt the Swedish language and being familiar with English as his only language spoken.
Although the Department of Immigration had invited each of the applicant's parents to become Australian citizens, they did not take up this offer. Although the applicant's mother has returned to Sweden in the intervening years, the applicant has never accompanied her. He has never left Australia since entering it at the age of 27 days. He has never attempted to obtain a passport in Australia.
The applicant's mother gave evidence that in 1978 she separated from her husband, being a time when the applicant was about five years old, and that thereafter there was not regular contact between the applicant and his father and nor were there maintenance payments made by the father for the son. Little contact has been had between the applicant's family and his mother's family in Sweden, and the applicant's mother deposes that the applicant has no real idea of his family in Sweden; that he does not know the names of his cousins or where they live or what they do.
In the course of the proceedings before me, Ms Nystrom was called and her affidavit introduced into evidence. It was agreed that Mr Fels affidavit would form part of the evidence of the respondent. That affidavit annexed the applicant's and his mother's incoming passenger card dated 27 January 1973 and also a document indicating that on 27 January 1974 the applicant was granted a K51R(G) entry permit. Also annexed was a circular from the Department of Immigration dated 15 October 1973. The letter K designated migrant status and K51 indicated category of accompanying dependent. R was, "The grantee is to be exempted from registration under the Aliens Act 1947 to 1966," and (G), "The grantee must be accompanied to Australia by the person specified in the visa," in this case, his mother.
Consideration
The applicant submitted that he has an absorbed person visa. The Minister has purported to cancel a visa that he does not have. As a consequence, jurisdictional error has occurred and accordingly the applicant whom is in detention ought to be released immediately.
The respondent argued that this case is not principally about whether or not the applicant held an absorbed person visa. The respondent argued that the question before the Court is whether the applicant held a Transitional (Permanent) visa, because that was the visa that the Minister purported to cancel on 12 August 2004. If the applicant did hold a Transitional (Permanent) visa, then whether or not he held an absorbed person visa, the respondent argues, becomes irrelevant, because if that visa was held, it would have been cancelled by reason of section 501F(3) of the Act. In arguing that the Minister cancelled the right visa, the applicant said the following:
1)The structure and operation of the Act has changed on several occasions since 1974. At that time when the applicant first entered Australia, the effect of section 6 of the Act was that the applicant could not enter Australia from Sweden without first being granted an entry permit. Section 6 provided that:
a)An immigrant who, not being the holder of an entry permit that is in force, enters Australia, thereupon becomes a prohibited immigrant;
b)An officer may, in accordance with this section and at the request or with the consent of an immigrant, grant to the immigrant an entry permit.
In 1994, the Act was amended to create a requirement that all non-citizens (formerly immigrants as defined in section 6 above) within Australia who did not hold a visa would become unlawful non-citizens. As part of those amendments, the Migration Reform (Transitional Provisions) Regulations 1994 were introduced in order to regularise the visa status of people who had entered Australia prior to 1994. Regulation 4(1) provided that:
Subject to regulation 5, 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.
The definition of a permanent entry permit in Regulation 3 was an entry permit not subject to a time limit. The original entry permit granted to the applicant in 1974 was a permanent entry permit. This is conceded by the applicant. Accordingly, the respondent argues that on 1 September 1994, by operation of law, the applicant was taken to have been granted a Transitional (Permanent) visa and it was that visa that the Minister cancelled on 12 August 2004. Counsel for the respondent argues that the applicant can only avoid the operation of Regulation 4 if the Court can somehow be convinced that the permanent entry permit had ceased to exist for some reason. If it had continued to exist, then before 1 September 1994, the applicant held it and by force of the Regulation he was deemed to hold the visa that the Minister cancelled. The permit exhibited to the affidavit of Mr Fels shows the grant of a permanent entry permit. The grant of that permit is not surprising, because it is the manner in which the applicant was allowed to enter Australia.
In the currency of the proceedings, it became apparent that the applicant wished to contend that he did not hold a visa in the manner outlined above. The onus then fell upon him to establish that fact (Eatts v Dawson (1990) 21 FCR 166 at 171).
I accept the respondent's submissions that the applicant has not put before the Court any fact that would suggest that the entry permit that was granted in 1974 ceased to exist. It continued to exist up until it was transformed by the Transitional Provisions into the Transitional (Permanent) visa that was cancelled by the Minister. This case simply turns on that.
However, the applicant argues that on the same date that he was granted the Transitional (Permanent) visa, he was also granted an absorbed person visa by reason of the provision that is now in section 34 of the Act which, at the relevant time, was section 26AB inserted by section 8 of the Migration Legislation Amendment Act 1994 (Cth). The Minister accepts that the applicant would have been granted an absorbed person visa if, before 2 April 1984, he had ceased to be an immigrant (section 34(2)(a) and (b)). The Minister does not accept, however, as a matter of fact that the applicant had ceased to be an immigrant as at that date. The Minister argues that even if the Court accepted the applicant's argument that he had ceased to be "an immigrant" by 2 April 1984, that would only establish that on 1 September 1994 he was granted by operation of law both (a) a Transitional (Permanent) visa, and (b) an absorbed person visa. That is, even if the applicant were granted an absorbed person visa, it would not follow from that that the applicant had not also been granted a Transitional (Permanent) visa. The absorbed person visa was really a safety-net, as it were, in 1994 to stop some persons being declared unlawful in 1994.
The applicant's counsel contended that the applicant did not hold a Transitional (Permanent) visa but rather an absorbed person visa, being a visa specifically granted by operation of law by section 34 of the Act. Counsel for the applicant contends that an absorbed person visa reflects a very different status in terms of its nature and character, compared to a Transitional (Permanent) visa, despite the fact that they are both permanent visas. An absorbed person visa has a special status under the Act reflecting an earlier status as a person who ceased to be an immigrant. Thus a section 34 visa is a statutory visa and as such is rare. By contrast, a Transitional (Permanent) visa does not reflect the same status and is not conferred by the Act. The applicant's counsel also argued that it cannot be certain that the Minister correctly identified or weighed the relevant considerations she ought to have considered when exercising her power to cancel an absorbed person visa.
The respondent's argument was that even if the applicant were granted an absorbed person visa, it did not follow the applicant had not also been granted a Transitional (Permanent) visa. If so, this was a significant conclusion to reach because section 501F of the Act relevantly provides that:
(1) This section applies if the Minister makes the 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) the 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.
Thus the effect of section 501F(3) is that provided the Minister properly cancelled the applicant's Transitional (Permanent) visa, then even if the applicant did hold an absorbed person visa, which the respondent did not concede, that visa would have been cancelled by force of section 501F(3) of the Act.
Once the holder of an entry permit, if it was a permanent entry permit, a person would have continued to have that entry permit whether or not being absorbed into the community. Absorbed persons fell into two categories, both those who held a permit and those who did not. Those who did not were deemed to be unlawful non-citizens unless they obtained a permit. Thus before 2 April 1984 and as referred to in the decision of Kaushal Sharma v Minister for Immigration and Multicultural and Indigenous Affairs [1997] 1050 FCA:
Before 2 April 1984, only "immigrants" needed entry permits to enter and remain lawfully in Australia. If a person was absorbed, that is, ceased to be an immigrant, he or she did not need an entry permit to enter and remain lawfully in Australia. However, from 2 April 1984 the obligation to hold an entry permit applied to all non-citizens rather than only immigrants. The effect of the amendments was that absorbed persons who did not hold entry permits lost their lawful resident status from the commencement of section 8(2) of the Migration Amendment Act 1983.
That was clearly premised upon the fact that an absorbed person could hold an entry permit, ordinarily would hold one but in some cases could have entered Australia without one and therefore would not be assisted by the transitional provisions that converted the entry permit into something else. So the absorbed person's visa was created to fill that gap. In becoming absorbed the applicant’s counsel submits the applicant lost the earlier permit that he had been granted.
Here, the applicant retained his entry permit which became a Transitional (Permanent) visa. He did not at any time lose it. Indeed he would not have wanted to lose it. There is no reason to assume that the visa that was granted in January 1974 was not still in effect immediately before 1 September 1994 and thereby became by force of the Migration Reform (Transitional Provisions) Regulations 1994 the visa that the Minister cancelled.
Section 82(2) of the Act is indicative that ordinarily a person would not have multiple substantive visas and that in usual circumstances one substantive visa replaces the substantive visa held before it. However, section 501F of the Act deals with the situation in which a single person holds more than one visa. The work that section does is explained in the passage referred to in the contentions of the respondent and referred to by Finn J in Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 389 wherein it was stated (at [24]):
Section 501(1) is concerned not with the bare question whether a particular visa should be cancelled or refused. Within its province, its purpose in the usual case (cf s 501F(3)(b)) is to allow the Minister to determine whether or not a non-citizen should be allowed to enter or to remain within Australia: see Second Reading Speech, Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998, Vol H of R 223, (1998), 1229ff. I would interpolate that the "Preamble" to Direction No 21 revealed this very purpose to Mr Akpata. The s 501 character test is of general application to all visa applicants and holders. If a decision adverse to a particular visa applicant or holder was made under s 501(1), but that person already held and was able to retain another visa (other than a visa saved for example by s 501F(3)(b)), the effect of that decision would be nullified to the extent that that person would remain a lawful non-citizen (see s 13(1) of the Act) not liable to be removed from Australia under s 198 of the Act. The function of s 501F(3), in my view, is to preclude such an outcome. Thus it operates in aid of s 501 in the scheme of the Act in effectuating s 501's purpose.
While the decision of the Minister under section 501(1) of the Act attracts a natural justice requirement in relation to her doing what is mandated by that subsection (ie determining whether to refuse to grant a visa to a person who does not satisfy the Minister that he or she passes the character test), the obligation does not extend to explaining how, in the scheme of the Act, an adverse decision is carried into effect. As stated by Finn J in Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 389 at [25], the focus of the natural justice obligation is:
… the "character test" determination itself. If that is decided adversely to a visa applicant the consequences are, in the usual case (but cf s 501F(2)(b) and (3)(b)), pre-ordained by the Act. No matter how harshly those consequences might fall on an unsuccessful applicant, they are not of themselves capable of generating a natural justice obligation to warn of them as part of the processes leading to a s 501(1) decision.
Finn J also rejected an argument that the Minister had failed to take account of a relevant consideration, stating (at [30]):
The terms of the character test apart, the Act does not expressly state the considerations which the Minister is bound to take into account in making his decision under s 501(1): Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41. In my view, the subject matter, scope and purpose of the Act do not lead to or necessitate any implication that the Minister was bound to take account of the impact on a visa applicant of those machinery provisions of the Act (such as s 501F) that were designed to effectuate the actual purpose of an adverse decision taken under s 501(1) (ie the removal of that person from Australia). In any event, one can reasonably infer that the Minister was aware of those machinery provisions…
The Minister makes a decision whether a person should be permitted to remain in the Australian community or not. Section 501(3) is such that once the Minister has properly turned her mind to a particular visa and cancelled it, then everything else shall follow.
Even if the applicant fell into both categories, that is that he was an absorbed person and a visa holder and was deemed to have two different visas, the Act comfortably accommodates such a situation as is submitted by the respondent’s counsel.
The applicant's case had no regard to the effect of section 501F(3) of the Act. The applicant in particular relies on the decision in Johnson v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 137 which turned upon Regulation 17(1)(c)(v) which had the effect that if the applicant was taken to hold an absorbed person visa, he was not taken to hold a special category visa. In that case the Minister purported to cancel a visa that it was later held the applicant did not hold and that therefore there was no visa to cancel and no occasion for the operation of section 501F(3) of the Act.
In this case, by contrast, and even if the applicant had succeeded entirely in establishing for the Court that he was an absorbed person, which he has not, Regulation 4 provided that the applicant was granted an entry permit back in 1974. The Minister has clearly considered that visa and decided to cancel it. The court need not even consider whether or not the applicant was an absorbed person. The Minister was not required to separately consider that visa in any event because section 501F(3) of the Act operated upon it as a matter of law.
There is no doubt the Minister was aware that she was cancelling a permanent visa. Even if the Minister was in error in identifying the relevant visa, which this Court does not find, the considerations relevant to the decision to cancel a Transitional (Permanent) visa were no different to the considerations relevant to the cancellation of an absorbed person visa. The Minister took all relevant considerations into account, weighed them and reached a conclusion that was open to her.
Absorbed Person
The question as to whether or not the applicant had been absorbed into the community is to be determined as at April 1984. In April 1984 the applicant had been in Australia for 10 years without having left and with having had little or no contact with his relatives overseas. Clearly that favours absorption. He was, however, only a child and could not at that time have formed any views himself about his intention to permanently settle in Australia. There is no evidence in relation to the extent of his engagement in the community at that time, but his association with the criminal law in fact began at about that time as referred to by Counsel for the respondent. In any event, the Court determines there is no need to further canvass this issue given its findings.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Sophie Killen
Date: 16 March 2005
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