RCLN and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 35
•20 January 2023
RCLN and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 35 (20 January 2023)
Division:GENERAL DIVISION
File Number(s): 2022/9461
Re:RCLN
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
INTERLOCUTORY Decision
Tribunal:Mr S. Webb, Member
Date:20 January 2023
Place:Canberra
The decision to cancel RCLN’s visa under s 501(3A) of the Migration Act 1958 is not legally effective. The Application is dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975.
……………[sgd]………….
Mr S. Webb, Member
Click here to enter decision.
Catchwords
MIGRATION – mandatory cancellation of visa in respect of aggregate sentence – representations – decision not to revoke cancellation – effect of Pearson v Minister for Home Affairs – jurisdictional error – materiality of error – factual assessment of what the decision maker did – essential factual preconditions to mandatory cancellation – previous sentence to a term of imprisonment exceeding 12 months in 2012 not expressly referred to by decision maker – failure to take account of relevant consideration not established – satisfaction based on totality of relevant known facts – consideration of Migration Amendment (Character and General Visa Cancellation) Act 2014 and statutory construction – decision to cancel visa not legally effective – visa taken to be not cancelled – no authority to consider revocation – decision subject to review a nullity – no current jurisdiction – application dismissed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 42A, 42B
Migration Act 1958 (Cth), ss 500, 501, 501CACases
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21
Falzon v Minister for Immigration and Border Protection [2018] HCA 2
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Johns v Australian Securities [1993] HCA 56
Lockwood v Commonwealth [1954] HCA 31
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
MZACP V Minister for Immigration and Border Protection [2021] HCA 17
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Nkani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1239
Pearson v Minister for Home Affairs [2022] FCAFC 203
Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17
Plaintiff S157/2002 v Commonwealth [2002] HCA 3
QFWW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 3677
Ratu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 141
RCLN and Minister for Immigration and Citizenship [2011] AATA 412
Sarimsaklio and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 3194
Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 844
SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91
XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6REASONS FOR DECISION
Mr S. Webb, Member
20 January 2023
RCLN has held visas which permitted him to be in Australia lawfully from the age of 18. He also has a chequered history of criminal offending. In this context, RCLN’s visa was cancelled, although the cancellation decision was subsequently revoked by the Tribunal in 2011 (differently constituted).[1] On 21 July 2021, a decision was made to cancel RCLN’s visa under s 501(3A) of the Migration Act 1958 (Migration Act) (cancellation decision). This decision is at the root of these proceedings. RCLN unsuccessfully sought revocation of the cancellation decision (revocation decision) and subsequently applied for review of the revocation decision.
[1] RCLN and Minister for Immigration and Citizenship [2011] AATA 412.
In the course of the resulting proceedings, on 23 December 2022, the Full Court of the Federal Court of Australia handed down a decision in Pearson v Minister for Home Affairs (Pearson).[2] The Full Court considered the proper construction of the character test in respect of a substantial criminal record for the purposes of s 501(3A) and (6) of the Migration Act. The Court decided the aggregate sentence of 4 years and 3 months Ms Pearson was given for offences she committed did not amount to her being sentenced to a term of imprisonment of 12 months or more for the purposes of s 501(7)(c) of the Migration Act. The Court said:
[2] [2022] FCAFC 203.
42. It is clear from the text of s 501 that mandatory cancellation of a person’s visa on character grounds is reserved for the most serious offences – those attracting the death penalty, life imprisonment, a term of imprisonment of 12 months or more, and sexual offences involving children. It is in that context the question of whether an aggregate sentence can be considered to be a term of imprisonment of 12 months or more is asked.
…
45. … The aggregate sentence of itself will say little to nothing about the seriousness of the individual offences for which indicative sentences have been given. Further, in the case where a sentencing judge fails to provide indicative sentences for individual offences, an aggregate sentence of imprisonment is not invalidated (s 53A(5)). In such circumstances, there could be no objective means by which the Minister could reach any reasonable suspicion, on the basis of s 501(7)(c), as to whether a person’s visa ought to be mandatorily cancelled.
46 In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Darnia-Wilson [2022] FCAFC 28; 289 FCR 72 at [26], the Full Court said:
The natural and ordinary meaning of the unqualified expression, “sentenced to a term of imprisonment”, as it is used within the definition of a substantial criminal record in s 501(7)(c), describes an objective state of affairs. That unqualified expression contrasts, for example, with the qualified expression of the nature of the sentence on which s 501(3A)(b) operates.
47 Similarly, the unqualified expression can be contrasted with that in s 501(7)(d) – “sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more” – and with the explanation in respect of concurrent sentences in s 501(7A). Had Parliament intended that an aggregate sentence of 12 months or more should be subject to mandatory cancellation of a person’s visa, it would have been a straightforward matter to say so. That it did not do so is consistent with the apparent purpose of s 501(3A), namely that only the most serious offending subjects a person to mandatory cancellation of a visa. Self-evidently, an aggregate sentence may be arrived at after conviction of a series of lesser offences, none of which on their own could render a person liable to have his or her visa mandatorily cancelled.
48 Ms Pearson was not sentenced (for an offence) to a term of imprisonment of 12 months or more. Consequently, her visa was not amenable to mandatory cancellation under s 501(3A). Of course, nothing would have prevented the Minister from exercising his discretion pursuant to s 501(2) or (3) to cancel her visa should he have been satisfied of the matters in that subsection.
On 23 December 2022, I directed the parties to provide any written submissions addressing the effect of Pearson on RCLN’s case in the Tribunal.
On 13 January 2023, the parties were given an opportunity to make further oral submissions during an interlocutory hearing. At the Minister’s request, additional time was allowed for further written submissions to be made.
At this point I should observe RCLN is was not legally represented when making submission on this point. Unsurprisingly, his submissions on the effect of Pearson lack the benefit of legal knowledge and understanding of relevant principles. Nonetheless, RCLN touched upon relevant issues to which I will shortly return.
It is the effect of Pearson on the present proceedings and related jurisdictional questions which are the subject of this interlocutory decision.
Short facts
On 17 June 2011, when reviewing a decision to cancel RCLN’s then visa on character grounds under s 501(2) of the Migration Act, the Tribunal (differently constituted) set out background facts in RCLN v Minister for Immigration and Citizenship (2011 Tribunal decision)[3] and set out the following summary:
1. RCLN was born in Iran in 1972. He is a citizen of Iran and moved to Australia from Portugal in October 1990 at the age of 18. RCLN was initially granted student visas and on 13 December 1996 he was granted a Transitional (Permanent) visa. RCLN has lived continuously in Australia since October 1990.
2. RCLN has a history of convictions in Australia, primarily for drug related and driving offences, starting from about October 1996. He has also been convicted of assault related to domestic violence and firearms offences. On 17 November 2008, RCLN was convicted in the District Court of New South Wales for possession of an unregistered firearm, supply of a prohibited drug, possession of drugs and possession of goods suspected of being stolen. He was on parole at the time of the offences. RCLN was sentenced to imprisonment of four years and nine months, with a non-parole period of two and a half years. The Court directed that RCLN be released to parole on 13 January 2011 to a full time residential rehabilitation program. RCLN commenced the Odyssey House rehabilitation program on his release from prison but was taken into immigration detention after his visa was cancelled.
[3] [2011] AATA 418 at [25]-[40].
The Tribunal decided to set aside the decision to cancel RCLN’s visa.[4]
[4] Ibid at [100]-[101].
On 11 April 2012, a delegate of the then Minister issued RCLN a notice, stating:
On 12 July 2011 the Department of Immigration and Citizenship notified you that the
visa which authorises your continued stay in Australia may be liable for cancellation
under section 501 of the Migration Act 1958 on character grounds.
After taking into account all relevant considerations, a delegate of the Minister has
made a decision not to cancel your visa on character grounds on this occasion. Your
current Class .BF Transitional (Permanent) visa will continue to provide you with
permission to remain in Australia. However the delegate decided that you are to be
given the following formal warning.
Please note that visa cancellation action is now likely to be reconsidered
based on recent information received of your commission of further offences
which are likely to have again breached the character test. We will be in touch
with you after further information comes to hand, following your impending
court appearance.[5]
[5] G16, folio 121.
On 10 December 2012, RCLN was convicted of drug-related offences in the Gosford District Court. He was sentenced to concurrent terms of imprisonment of 3 years and 9 months and 3 years and 6 months from 23 June 2012.[6] On the present materials, it is not possible to determine when RCLN was charged with these offences or when they were committed.
[6] G12, folio 108.
In 2017, RCLN was convicted of 2 driving offences.[7] In 2019, RCLN was convicted of 2 further driving offences and a common assault (domestic violence) offence, for which he was sentenced to a 2-year community corrections order.[8] In 2020, RCLN was convicted of 7 further driving offences and a common assault (domestic violence) offence. He was fined and sentenced to intensive correction orders.[9]
[7] G3, folio 41.
[8] Ibid.
[9] Ibid, folios 39-41.
On 5 May 2021, RCLN was convicted of ‘Contravene prohibition/restriction in AVO (Domestic)’, ‘Drive motor vehicle during disqualification period – 2nd+ off’, two counts of ‘Stalk/intimidate intend fear physical etc harm (domestic)’, and ‘Destroy or damage property (DV)’ and sentenced to an aggregate term of 16 months imprisonment (aggregate sentence).[10]
[10] Ibid, folios 38-39.
On 21 July 2021, a delegate of the then Minister issued a decision cancelling RCLN’s Class BB Subclass 155 - Five Year Resident Return visa (Visa) under s 501(3A) of the Migration Act.[11] The delegate set out the following:
[11] G17.
Particulars of relevant information
Failure to pass the character test
Based on the information before the Department, the decision maker (who is a delegate of the Minister) was satisfied that you do not pass the character test on the following ground:
You have a substantial criminal record within the meaning of s501(6)(a) on the basis of s501(7)(a), (b) or (c) of the Act.
Under s501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. On 05 May 2021 you were convicted of Contravene prohibition/restriction in AVO (Domestic), Drive motor vehicle during disqualification period – 2nd+ off, two counts of Stalk/intimidate intend dear physical etc harm (domestic)-T2 and Destroy or damage property (DV) in the Local Court of New South Wales in Burwood for which you were sentenced to an aggregate term of 16 months imprisonment.
The information based on which the decision maker was satisfied that you do not pass the character test is the Court Order Notice of the Local Court of New South Wales in Burwood dated 05 May 2021; issued 01 July 2021.
Imprisonment on a full-time basis
Based on the information available, the decision maker was also satisfied that, at the time of the decision, you were serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.
In particular, regard was had to Conviction, Sentences and Appeals report from the New South Wales Department of Corrective Services 16 June 2021.
Your visa status
Your visa has been cancelled and you no longer hold a visa. Additional information in Attachment 2 explains the consequences of the cancellation of your visa.
Opportunity to seek revocation of the original decision to cancel visa
While your visa has been cancelled and you no longer hold a visa, you have an opportunity to make representations to the Minister about revoking the decision to cancel your visa under s501(3A) (‘the original decision’).
You are hereby invited to make representations to the Minister about revoking the original decision. The representations must be made in accordance with the instructions outlined below, under the headings ‘How to make representations about revocation of the original decision’ and ‘Timeframe to make representations about revocation’.
The original decision may be revoked by the Minister under s501CA(4) of the Act if you make representations in accordance with the specified instructions and the Minister is satisfied that:
you pass the character test (as defined by s501 of the Act); or
there is another reason why the original decision should be revoked.
The full text of s501CA of the Act is included in Attachment 1.
…
Information and other matters on which you may wish to comment
Under s499 of the Act which permits the Minister to issue written directions about the exercise of powers under the Act, the Minister has issued Direction 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA which identifies issues that are relevant to the revocation consideration. If the decision-maker who makes the decision regarding whether or not to revoke the original decision is a delegate of the Minister, they must follow Direction 90. If, however, the Minister makes a revocation decision personally, he or she is not bound by Direction 90, although it provides a broad indication of the types of issues that the Minister is likely to take into account in deciding whether or not to revoke the original decision.
A copy of Direction 90 is enclosed for your information.
Copies of the following document/s, which contains information in the possession of the Department at the time the original decision was made, are also enclosed for your information.
Court Order Notice of the Local Court of New South Wales in Burwood dated 05 May 2021; issued 01 July 2021
Conviction, Sentences and Appeals report from the New South Wales Department of Corrective Services 16 June 2021
If you make representations about revocation of the original decision according to the instructions in this notice as outlined above, then the enclosed information will also be taken into consideration when deciding whether or not to revoke the original decision.
As some of the enclosed information is adverse information that may undermine the possible revocation of the original decision, if you decide to make representations in support of revocation, you may also wish to provide specific comments regarding the enclosed information, in particular the adverse information.[12]
[12] Ibid, folios 124-125 and 127.
On 31 July 2021, RCLN made representations to the Minister seeking revocation of the cancellation decision setting out the following reasons[13]:
[13] G18, folio 135.
On 16 November 2022, a delegate of the then Minister issued RCLN notice of a decision to refuse to revoke the cancellation decision.[14]
[14] G2.
On 18 November 2022, RCLN applied to the Tribunal for review of the revocation decision.[15]
[15] G1.
By operation of s 500(6L)(c) of the Migration Act, if the Tribunal does not make a decision in respect of RCLN’s application within 84 days (by 8 February 2023), the revocation decision will be taken to be affirmed. It is in consideration of the limit of time thus imposed that this interlocutory matter has been progressed to a decision without RCLN’s newly engaged legal representatives (as of 19 January 2023) having opportunity to make submissions on his behalf, the time limit under s 500(6J) having passed.
Legislation
The relevant legislative provisions are set out in the Migration Act. Provision was made for the mandatory cancellation of a lawful non-citizen’s visa on character grounds on passage of the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Amendment Act). By this enactment, under item 8 in Schedule 1, s 501(3A) came into effect. Application of the new section was subject to item 32:
(1) The amendments made by items 3, 4, 7, 8, 9, 17, 18 and 20 to 24 of this Schedule apply to a decision made on or after the commencement of this item to cancel a visa under subsection 501(3A) of the Migration Act 1958, whether the sentence of imprisonment on the basis of which the visa is cancelled was imposed before, on or after the commencement of this item.
(2) Despite subitem (1), the Minister must not, under subsection 501(3A) of the Migration Act 1958, cancel the visa of a person who is serving a sentence of imprisonment, if:
(a) before the commencement of this item, but during that
imprisonment, the Minister considered cancelling the person's visa
under subsection 501(2) of the Migration Act 1958 and decided not
to cancel the visa; and
(b) since that decision, no further sentence of imprisonment has been
imposed on the person.
The plurality in Falzon v Minister for Immigration and Border Protection (Falzon)[16] explained the purposes of these provision in the following terms:
49. In the Explanatory Memorandum to the Bill which introduced s 501(3A) it was said that "[t]he intention of this amendment is that a decision to cancel a person's visa is made before the person is released from prison, to ensure that the non-citizen remains in criminal detention or, if released from criminal custody, in immigration detention while revocation is pursued". In the course of the Second Reading Speech the then Minister said that s 501(3A) was calculated to ensure that "noncitizens who pose a risk to the community will remain in either criminal or immigration detention until they are removed or their immigration status is otherwise resolved".
50. It may be accepted that these extrinsic materials show an awareness on the part of the Parliament about the operation of s 501(3A) in the statutory scheme and that one of its purposes is to keep the person out of the community until he or she is removed from Australia. Such a purpose is consistent with those of the other cancellation powers in s 501. The extrinsic materials do not reveal any purpose to ensure that a person is detained in order to punish them.
[16] [2018] HCA 2, per Kiefel CJ, Bell, Keane and Edelman JJ at [49]-[50].
Ancillary amendments were made to the review provisions conferring jurisdiction on the Tribunal.
500 Review of decision
(1) Applications may be made to the Administrative Appeals Tribunal for
review of:
(a) …; or
(b) decisions of a delegate of the Minister under section 501 (subject
to subsection (4A)); or
…
(4A) The following decisions are not reviewable under this section, or under Part 5 or 7:
(a) …;
(b) …;
(c) a decision of a delegate of the Minister under subsection 501(3A)
to cancel a visa.
As can be seen, the Tribunal has no jurisdiction review a decision under s 501(3A) to cancel a visa. No express provision is made for the review of a visa cancellation decision under s 501(3A), which has been construed as a privative clause decision which may be reviewable by the Federal Court.[17] Nonetheless, in order to address the jurisdictional issues in this case, it is necessary to carefully consider the statutory language, context and purposes of s 501(3A) and related provisions.
[17] XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6, per Rares J at [43] with whom Yates J agreed.
501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate—natural justice applies
…
(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.
Decision of Minister—natural justice does not apply
(3) The Minister may:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person;
if:
(c) the Minister reasonably suspects that the person does not pass the
character test; and
(d) the Minister is satisfied that the refusal or cancellation is in the
national interest.
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character
test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of
paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full‑time
basis in a custodial institution, for an offence against a law of the
Commonwealth, a State or a Territory.
(3B) Subsection (3A) does not limit subsections (2) and (3).
…
(5) The rules of natural justice, and the code of procedure set out in Subdivision
AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or
(3A).
Clearly enough, the thresholds for exercising the discretion to cancel a visa under ss 501(2) or (3), including the formation of reasonable suspicion a person does not pass the character test set out in s 500(6) and (7) (below), are substantively different than the thresholds which apply to the duty to cancel a visa under s 501(3A). The duty is enlivened where each of the 2 essential limbs under s 501(3A)(a) and (b) are satisfied.
Once the terms of s 501(3A)(a)(i) or (ii) and (b) are satisfied, the Minister must cancel the person’s visa.[18] Where the jurisdictional facts, the essential preconditions to the exercise of power conferred upon the Minister by s 501(3A), are established, the Minister is bound to exercise the power. The rules of natural justice do not apply. The duty arises once both jurisdictional facts occur.[19]
[18] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41, per Keane, Gordon, Edelman, Steward and Gleeson JJ at [12].
[19]XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6, per Rares J, with whom Yates J agreed, at [74]-[75].
The first precondition or jurisdictional fact in s 501(3A)(a)(i) or (ii) is in respect of the character test. In order to satisfy the first precondition of the duty to cancel a visa set out in s 501(3A)(a)(i), the decision maker must be satisfied the person does not pass the character test because of the operation of s 501(6)(a) on the basis of s 501(7)(a), (b) or (c).
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
…
Substantial criminal record
(7) For the purposes of the character test, a person has a substantial
criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12
months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment,
where the total of those terms is 12 months or more; or
…
Concurrent sentences
(7A) For the purposes of the character test, if a person has been sentenced
to 2 or more terms of imprisonment to be served concurrently (whether
in whole or in part), the whole of each term is to be counted in working
out the total of the terms.
Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.
…
(12) In this section:
court includes a court martial or similar military tribunal.
imprisonment includes any form of punitive detention in a facility or institution.
sentence includes any form of determination of the punishment for an offence.
In consideration of these provisions, an important nexus was drawn in Pearson between the sentence and an offence:
43. … In the context of s 501(7), it is apparent that Parliament has made a distinct choice about the nature of the sentence for an offence that was to be used as an objective proxy for a “substantial criminal record” that will lead to mandatory cancellation – that being an offence punishable by death, life imprisonment, or a term of 12 months.
Nevertheless, the sentence is a foundational element of the s 501(3A) mandatory cancellation power which requires a properly formed state of satisfaction that the non-citizen had been sentenced to a term of imprisonment of 12 months or more.[20] The proper formulation of a state of satisfaction in this context requires evaluative judgment based on relevant evidentiary material and a process of reasoning by the decision maker as to the existence of a sentence of the requisite kind.[21] The satisfaction of the decision maker that the person does not pass the character test because of the operation of s 501(6)(a) on the basis of s 501(7)(a), (b) or (c) is one of the jurisdictional facts on which a legally effective decision under s 501(3A) rests.
[20] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, per McKerracher J, with whom Colvin J agreed, at [63].
[21] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, per Crennan and Bell JJ at [135]; Hossain v Minister for Immigration and Border Protection [2018] HCA 34, per Kiefel CJ, Gageler and Keane JJ at [34].
A legally effective decision under s 501(3A) has the immediate effect of changing the lawful status of the person from that of a lawful non-citizen to an unlawful non-citizen.[22] A decision of that kind does not authorise detention, and it is not punitive in nature, but it is ostensibly final unless it is revoked under s 501CA(4). No doubt it may have a profound effect on a person subject to the consequential effects of an immediate change in their lawful status under the Migration Act, including detention under s 189 and deportation as soon a reasonably practicable under s 198.
[22] Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17, per Kiefel CJ, Keane, Gordon and Steward JJ at [12].
Section 501(3A) and s 501CA are cognate provisions which should be considered together.[23]
[23] Ratu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 141 at [49].
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original
decision) under subsection 501(3A) (person serving sentence of
imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information
(other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original
decision; and
(b) is specifically about the person or another person and is not just
about a class of persons of which the person or other person is a
member.
(3) As soon as practicable after making the original decision, the Minister
must:
(a) give the person, in the way that the Minister considers appropriate
in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the
period and in the manner ascertained in accordance with the
regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation;
and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by
section 501); or
(ii) that there is another reason why the original decision should
be revoked.
…
Absent a legally effective s 501(3A) decision, s 501CA(1) is not engaged.[24]
[24] XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6, per Rares J, with whom Yates J agreed, at [59] and [63]-[64]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41, per Keane, Gordon, Edelman, Steward and Gleeson JJ at [12].
The discretionary revocation power under s 501CA(4) is essentially preconditioned by a legally effective cancellation decision under s 501(3A) and by representations made by the former visa holder in response to an invitation under s 501CA(3)(b).[25]
[25] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, per McKerracher J, with whom Colvin J agreed, at [63].
The importance of giving a written notice of the original decision to cancel the person’s visa under s 501(3A) and relevant information to the person, and the invitation for the person to make representations about revocation of the cancellation decision, can readily be understood. It is only by these mechanisms the discretionary power of revocation reposing in the Minister may be engaged following a decision under s 501(3A). Importantly, the obligation to provide the person with relevant information requires particulars of the relevant information that would be the reason, or part of the reason, for making the cancellation decision to be given. The requirement for particularity is for the purpose of communicating the reasons for the cancellation decision to the person.
Party submissions
RCLN’s submissions are primarily directed to issues of revocation which are relevant to considerations under s 501CA of the Migration Act. It is not necessary to address those submissions in any detail for present purposes. Nevertheless, doing the best with the submissions RCLN made during the interlocutory hearing, he asserts it is not appropriate to rely on the 2012 sentence to cancel his Visa in 2021. This, he contends, might amount to ‘double jeopardy’ which should not be allowed.
The Minister submits Pearson is wrongly decided and consideration is being given to an application for special leave from the High Court of Australia to appeal against the decision.[26] This notwithstanding, the Minister accepts Pearson is presently binding on the Tribunal.
[26] Respondent’s Submissions, 5 January 2023 at [11].
The Minister also accepts Pearson is applicable to RCLN’s case insofar as the cancellation decision was made in reference to an aggregate sentence of imprisonment. This notwithstanding, the Minister argues Pearson is distinguished on the underlying facts. RCLN was subject to a term of imprisonment of more than 12 months in December 2012 and, so the argument goes, this objectively establishes RCLN could not pass the character test as he has a substantial criminal record under s 501(7)(c) of the Migration Act.
The Minister asserts the error made by the cancellation decision maker in relying on the aggregate sentence gives rise to questions of materiality. Where there was evidence before the decision maker which unequivocally established RCLN had a substantial criminal record under s 501(7)(c), satisfying the first limb in s 501(3A)(a)(i), and as RCLN was serving a term of imprisonment at the time the cancellation decision was made (satisfying the second limb in s 501(3A)(b)), in the Minister’s submission, the cancellation decision maker was duty bound to cancel RCLN’s Visa under s 501(3A). It is the Minister’s submission this amounts to an ‘independent reason’ why the Minister’s delegate was required to cancel RCLN’s Visa.[27] Consequently, the Minister suggests the decision maker’s error is not material to the extent it might invalidate the cancellation decision.
[27] Respondent’s Supplementary Submissions, 16 January 2023 at [8].
Citing Lockwood v Commonwealth[28] and Johns v Australian Securities Commission[29], the Minister advances the proposition the decision maker’s error is akin to mistaking the source of decision-making power in circumstances where the validity of the decision is drawn from a different source of power. Where the facts on which the exercise of power to cancel a person’s visa under s 501(3A) essentially rests are objectively established, the Minister contends the duty to cancel cannot be avoided: it is not open for a decision maker to construe the satisfaction referred to in s 501(3A)(a)(i) as a discretion which might be exercised subjectively.
[28] [1954] HCA 31 at [14].
[29] [1993] HCA 56 at [40].
Drawing authority from Falzon[30], it is this enquiry in respect of the objective facts underlying the cancellation decision the Minister argues the Tribunal is presently authorised to conduct for the purposes of determining if, as a jurisdictional fact, the cancellation decision is legally effective, and it should do so without stepping into the shoes of the cancellation decision maker. Furthermore, the Minister asserts the Tribunal could make counterfactual findings ‘whether the delegate would have been satisfied that an applicant meets s 501(3A)(a) by reason of another conviction’[31].
[30] [2018] HCA 2 at [48].
[31] Respondent’s Supplementary Submissions, 16 January 2023 at [10].
The Minister maintains the 2012 sentence was not previously relied upon when considering whether RCLN’s visa should or must be cancelled under s 501 and, for this reason, cases such as XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (XLJR)[32] and Minister for Immigration and Border Protection v Makasa (Makasa)[33] are to be distinguished.
[32] [2022] FCAFC 6.
[33] [2021] HCA 1.
Having carefully considered these matters, I am not persuaded by the Minister’s submissions and the conclusion contended for cannot be accepted.
Consideration
The Tribunal’s jurisdiction is essentially preconditioned by the decision of the Minister’s delegate to refuse to revoke the cancellation decision. Following and consequent to the decision in Pearson, there is a question about the legal effectiveness of the cancellation decision. Should the cancellation decision be found to be ineffective, there is no contest the revocation decision would have no effect and the Tribunal’s jurisdiction would have no further currency.
In consideration of the legal effectiveness of the cancellation decision, it is important to keep a steady eye on the scope of the Tribunal’s task and its powers. The Tribunal is not a Court. Unlike a Court of relevant jurisdiction, it does not have power to determine with finality the legal effectiveness of the cancellation decision.
Furthermore, as I have said, the Tribunal has no jurisdiction or power to review the cancellation decision.
Nonetheless, for the purposes of determining its jurisdiction in this application, the Tribunal is required to make findings about the existence of jurisdictional facts, which include the existence of a legally effective cancellation decision under-pinning the revocation decision. For this purpose, it is necessary to consider and make factual findings, including the drawing of reasonable inferences which are open on the available evidence, about the content of the cancellation decision and what the decision-maker did when making it. Where the decision maker engaged in reasonable and rational decision making, making choices on the available information, it is not appropriate for the Tribunal to speculate about what would or could have changed the decision maker’s mind. It is appropriate to assume the decision maker would give active and genuine consideration to all relevant matters.[34] The nature and extent of the factual findings necessary to determine the Tribunal’s jurisdiction are essentially limited by the statutory scheme under which the Minister’s decision-making duty to cancel a person’s visa in certain circumstances is, by operation of s 500(4A)(c), not subject to merits review by the Tribunal.
[34] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153, per Kerr and Mortimer JJ, with whom Allsop CJ agreed, at [174].
Issues of statutory construction also arise, particularly in respect of the operation of the Amendment Act and interpretation of the cognate provisions s 501(3A) and s 501CA.
Albeit brief, the notified reasons for the cancellation decision are very clear and specific. The notice sets out findings and the material on which the findings were made under 2 headings: Failure to pass the character test and Imprisonment of a full-time basis.[35] Under the Failure to pass the character test heading, the delegate was satisfied on the information before the Department RCLN failed to pass the character test on the ground he had a substantial criminal record within the meaning of s501(6)(a) on the basis of s501(7)(a), (b) or (c) of the Act. The specific reason for this finding is expressed in the following terms:
Under s501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. On 05 May 2021 you were convicted of Contravene prohibition/restriction in AVO (Domestic), Drive motor vehicle during disqualification period – 2nd+ off, two counts of Stalk/intimidate intend dear physical etc harm (domestic)-T2 and Destroy or damage property (DV) in the Local Court of New South Wales in Burwood for which you were sentenced to an aggregate term of 16 months imprisonment.
The information based on which the decision maker was satisfied that you do not pass the character test is the Court Order Notice of the Local Court of New South Wales in Burwood dated 05 May 2021; issued 01 July 2021.[36]
[35] G17, folios 124 and 125.
[36] Ibid.
On the basis of Pearson, the decision, in terms, is affected by jurisdictional error. The aggregate sentence of 16 months imprisonment is not a sentence to a term of imprisonment for the purposes of the character test under s 501(7)(c) and it is not therefore capable of satisfying the decision maker RCLN does not pass the character test for the purposes of s 501(3A)(a)(i).
As can be seen, the notice identifies the specific material on which the decision maker was satisfied RCLN did not pass the character test, namely the Court Order Notice of the Local Court in Burwood issued on 1 July 2021. The Minister asserts, and it can be accepted, there was other information before the delegate which included a Conviction, Sentences and Appeals report from the New South Wales Department of Corrective Services on 16 June 2021 (CSA Report). This material cites RCLN’s conviction of 2 drug offences in the Gosford District Court on 10 December 2012 for which he was sentenced to concurrent terms of imprisonment of 3 years and 9 months and 3 years and 6 months from 23 June 2012.
The notes included in the CSA Report contain references to ‘DIAC interest’ on 26 April 2012 in respect of a matter before the Local Court in Wyong and ‘Alerts Ass, DIAC …’ on 1 August 2013 at a time when RCLN was incarcerated.[37] What is to be made of these references is not clear. Nevertheless, it may be inferred the NSW Department of Corrective Services provided information to the Minister’s Department in respect of RCLN’s sentence status in 2012 and 2013. This information was before the delegate who made the cancellation decision.
[37] G14, folios 124 and 125.
Even though the visa cancellation notice did not expressly refer to the 2012 offences and sentences, it is open to infer the delegate had regard to them and to the other information which was before the Department at the time. There is not sufficient probative material to make any contrary finding.
While the delegate may not have been under a duty of the particular kind referred to by the majority in Singh v Minister for Immigration and Multicultural Affairs,[38] for example, in respect of factual findings, the delegate was obliged to take account of all relevant considerations and to provide reasons for the decision made. So much is reinforced by the Minister’s obligation in respect of relevant information under s 501CA(3)(a)(ii).
[38] [2000] FCA 844 at [44]-[48].
The content of the delegate’s reasons, insofar as they are contained within the visa cancellation notice and the recitation of relevant information it contains, expose the process of reasoning the delegate engaged in, including the findings made and the materials on which the findings were based. It is possible, as the Minister asserts, the delegate failed to take account of a relevant consideration or proceeded on an incorrect understanding or application of the law. No such finding can positively be made, directly or by inference, on the available materials. On the one hand, the absence of any express reference in the visa cancellation notice and the relevant information to the 2012 sentences imposed by the Gosford Local Court might suggest the delegate missed or failed to take account of the possible significance of those sentences for the purposes of s 501(3A)(a)(i) and the character test under s 501(7)(c). On the other hand, the absence of such reference might suggest the delegate considered all the information before the Department and concluded the 2012 sentences were not relevant considerations when deciding the question of satisfaction in respect of the character test in s 501(7)(c) for the purposes of s 501(3A)(a)(i) in July 2021.
There is no place for speculation or assumption in respect of what the delegate in fact did when making the decision in fact made. These are matters of fact to be determined, directly or by inference at least, on the basis of probative materials. The present materials are not sufficient to support a positive finding the delegate failed to take account of a relevant consideration or, more particularly, the 2012 sentences.
The Minister’s submission proceeds on the basis the 2012 sentences unequivocally showed the applicant did not pass the character test by reason of s 501(7)(c) and this amounted to an independent reason why the delegate was required to cancel the visa under s 501(3A).
There are a number of things to say about this.
The proposition RCLN did not pass the character test on the basis of the convictions and sentences in December 2012 is not unequivocal. The convictions and sentences were handed down prior to the commencement of the Amendment Act in 2014. The applicability of provisions in the Amendment Act are such that careful consideration would be required by the delegate in order to determine relevant facts and the extent to which, if at all, any prior sentences were affected for the purposes of s 501(3A).
In this regard there is an issue of statutory interpretation which should be mentioned. The plurality in Falzon explained one of the purposes of the mandatory visa cancellation scheme which came into effect with under the Amendment Act is to keep the person out of the community until he or she is removed from Australia.[39] The plurality considered this was consistent with the Explanatory Memoranda for the Bill which became the Amendment Act, and expressly states “[t]he intention of this amendment is that a decision to cancel a person's visa is made before the person is released from prison, to ensure that the non-citizen remains in criminal detention or, if released from criminal custody, in immigration detention while revocation is pursued".[40]
[39]Falzon at [50].
[40] Ibid at [49].
In the Minister’s submission there is no requirement for any contemporaneity, or even temporal proximity, between a sentence to a term of imprisonment on which basis a person may be found to have a substantial criminal record such that a decision maker would be satisfied they do not pass the character test for the purposes of s 501(3A)(a)(i) and the person serving of a sentence of imprisonment sufficient to surpass the threshold in s 501(3A)(b). Under the Minister’s construction, for example, where a lawful non-citizen committed an offence and was sentenced to a term of imprisonment of more than 12 months many years ago, and the Minister did not cancel the person’s visa, should the person commit another offence 10 years later for which the person is sentenced to another term of imprisonment of less than 12 months duration, the previous term of imprisonment may be relied upon in satisfaction of s 501(3A)(a)(i) and the later 3 month term of imprisonment may be relied upon in satisfaction of s 501(3A)(b).
It is not for the Tribunal presently to determine if the construction for which the Minister contends is correct. The point of raising the issue and referring to the purposes discussed by the plurality in Falzon, which at first blush do not sit easily or well with the Minister’s interpretation, is to highlight an issue the delegate may have encountered when considering if the 2012 sentences could be relevantly applied in satisfaction of the character test consideration for the purposes of s 501(3A)(a)(i).
It was for the delegate to consider such matters on the information that was available at the time when deciding if a state of satisfaction could be reached for the purposes of s 501(3A)(a)(i). No positive finding can be made the delegate failed to do so. In fact, the delegate was satisfied RCLN failed the character test for the purposes of s 501(3A)(a)(i) on the basis of an aggregate sentence of 16 months imprisonment, which he was serving at the time. Had the delegate reached a positive state of satisfaction in respect of more than one sentence, one would expect the delegate to squarely address each sentence in the reasons for the decision, as commonly occurs in matters of this kind. Such was the case in the 3 Tribunal decision the Minister referred to in submissions addressing the question of legal effectiveness: QFWW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 3677, Nkani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1239 and Sarimsaklio and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 3194. In each case the cancellation decision maker expressly relied upon more than one sentence in satisfaction of the character threshold for the purposes of s 501(3A)(a)(i). It is on this point of express reliance, each of these cases is distinguished from RCLN’s case.
In RCLN’s case, the delegate did not in fact refer to the 2012 sentences and it cannot be assumed the delegate failed to take account of those 2012 sentences as relevant considerations. No such finding can positively be made.
There is no reliable basis on which to find the decision maker mistook the source of their power, or on which to find the decision is validly made under a different source of power, as the Minister contends. Simply put, it is not presently established the decision maker mistook the ‘source of power’ being exercised (noting the cancellation decision was made before Pearson was decided) and it is not established the 2012 sentences constitute a ‘different source of power’ in validation of the decision. The Minister’s submissions on this point must be rejected.
For similar reasons, the questions of materiality and counterfactual findings the Minister raised in submissions cannot be accepted.
In the ordinary course, subject to any contrary intention, the statute conferring authority is to be construed to incorporate a threshold of materiality, such that where authority is exceeded or a jurisdictional error is made, the breach is material if it results in practical injustice or where compliance could realistically have resulted in a different decision.[41]
[41] MZAPC v Minister for Immigration and Border Protection [2021] HCA 17, per Kiefel CJ, Gageler, Keane and Gleeson JJ at [31]-[35], citing Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, per Bell, Gageler and Keane JJ at [44]-[46].
In this case, consistent with reasons explained in Pearson, insofar as the delegate’s decision relied upon RCLN being sentenced to an aggregate 16-month term of imprisonment it exceeded the authority conferred by s 501(3A). It is possible, but not established, even to the level of reasonable conjecture, the 2012 sentences might be capable of satisfying a decision maker under s 501(3A)(a)(i). Without relevant factual findings in respect of any prior consideration of the 2012 sentences in respect of visa cancellation considerations under s 501(2), and without close consideration of the correct statutory construction of provisions in the Amendment Act relating to previous offences, convictions and sentences in the context of the statutory scheme it introduced for mandatory cancellation of visas on certain limited character grounds where a person is serving a term of imprisonment, no counterfactual or alternative basis for the satisfaction of the objective jurisdictional fact of a ‘substantial criminal record’ arising from a sentence of more than 12 months is made out or can be reasonably conjectured. On this point, the Minister’s submissions are not made out and cannot be accepted.
Conclusion
The Tribunal’s jurisdiction was enlivened by RCLN’s application for review of the revocation decision under s 501CA(4) of the Migration Act. The revocation decision was in respect of a discretion to revoke the cancellation decision where the essential preconditions in s 501CA(4) are satisfied. The discretion only arises in the limited circumstances where s 501CA applies:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
Following Pearson, the cancellation decision was affected by jurisdictional error. It follows as a matter of general principle, the cancellation decision is taken to be no decision at all under s 501(3A) of the Migration Act.
Absent a valid decision being made under s 501(3A), s 501CA does not apply and the discretion conferred by s 501CA(4) is not enlivened. So much was made clear by the majority (Rares J with whom Yates J agreed) in XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (XJLR). [42] Rares J said at [59]:
In my respectful opinion, the primary judge erred in characterising the scheme of ss 501(3A) and 501CA as providing, in substance, merits review of a cancellation of a visa under s 501(3A). A s 501CA decision whether to make a revocation is based on different criteria and material to that on which the duty to cancel the visa operated pursuant to s 501(3A). There is no merits review of the s 501(3A) decision available under the Act: rather, s 501CA proceeds on a statutory assumption, which is a jurisdictional fact, that the requirements of s 501CA(1) have been satisfied by a legally effective decision to cancel the visa. If the s 501(3A) decision to cancel the visa was of no legal effect because, in the words of s 501CA(1), it was not made under s 501(3A) (Plaintiff S157/2002 [2003] HCA 2; (2003) 211 CLR 476 at 506 [76]) then the delegate under s 501CA(4) and, later, the Tribunal under s 500(1)(ba) were not authorised by the Act to do anything because the visa remained in place and s 501CA(1) could not be satisfied. The exercise of functions under s 501CA depends on there being a decision made “under s 501(3A)” so that, by force of s 501CA(1) “this section” will then apply.
[42] [2022] FCAFC 6.
From this it follows, while the Minister’s delegate in fact made a decision not to revoke the cancellation decision, the delegate’s decision is a nullity and the Tribunal has no authority to review it.
In some cases, where a reviewable decision is in fact made and the decision is subsequently found to be legally flawed and nugatory, the flaw may not be determinative of the Tribunal’s jurisdiction, where the legal flaw may be amenable to correction by the Tribunal or it may not surpass the threshold of materiality for example.[43] No such remedy is available in this case, however. The principle Black CJ and Allsop J discussed in SZGME v Minister for Immigration and Citizenship[44] when distinguishing the ability of the Tribunal to cure the exercise of power affected by jurisdictional error where the original decision maker could never have made the particular decision under the relevant legislation, which was applied by the majority in XJLR, may be apposite here.[45]
[43] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21.
[44] [2008] FCAFC 91.
[45] Ibid at [33]-[36].
Consequently, being satisfied it is appropriate to do so in the circumstances, RCLN’s application is dismissed under s 42A(4) of the AAT Act.
Decision
Application dismissed.
I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Member S Webb.
...........................[sgd].............................................
Associate
Dated: 20 January 2023
Date of Hearing:
13 January 2023
Date final submissions received:
17 January 2023
Applicant: Marta Mamarot, Southwest Migration and Legal Services
Solicitor for Respondent:
Max Gao, HWL Ebsworth Lawyers
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