Timperio v Minister for Immigration
[2004] FMCA 2
•18 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TIMPERIO v MINISTER FOR IMMIGRATION | [2004] FMCA 2 |
| MIGRATION – Application for review of a decision made personally by the Minister for Immigration to cancel a visa held by the applicant under section 501(2) of the Migration Act in light of the applicant’s character – applicant contended that the Minister’s decision was not authorised because he was not a holder of a visa that had been 'granted to a person' – whether the Minister failed to identify the correct visa class of the applicant and whether the applicant had an absorbed person visa under the Migration Act or was the holder of a transitional (permanent) visa holder pursuant to the Migration Reform (Transitional Provision) Regulations – denial of merits review by the Administrative Appeals Tribunal – whether section 501(2) relates to decisions of the Minister or a delegate and whether natural justice applies – unreasonableness – immigration power under the Australian Constitution – naturalisation and alienation power – privative clause – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.11A, 12, 31(1), 31(2), 32, 33, 34, 34(2), 35, 36, 37, 38, 40 47(2), 180A, 180A(1), 180A(2), 474(1), 474(2), 500, 501, 501(2), 501(3)
Judiciary Act 1903 (Cth), ss.39B(1), 75(v)
Australian Constitution 1901 (Imp), ss.51(xxvii), 51(xix)
Migration Regulations 1989
Migration Regulations 1993
Migration Regulations 1994
Migration (Offences and Undesirable Persons) Amendment Act 1992 (Cth)
Migration Reform Act (Cth), s.40(5)
Migration Reform (Transitional Provisions) Regulations (Cth), Regs, 3(1), 4(1), 5
Migration Legislation Amendment (Strengthening Of Provisions Relating to Character And Conduct) Act 1998 (Cth), ss.23, 28
S157/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 195 ALR 24
Hall v Minister for Immigration and Multicultural & Indigenous Affairs (2000) FCA 415
Andary v Minister for Immigration and Multicultural Affairs (2002) FCA 1380
Re Minister for Immigration and Multicultural Affairs; ex parte Te (2002) 193 ALR 37
Re Minister for Immigration and Multicultural Affairs; ex parte Dang (2002) 193 ALR 37
Shaw v Minister for Immigration and Multicultural Affairs (2003) HCA 72
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Luu v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 369
Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 959
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) CLR 507
Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400
Griffiths v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FMCA 249
W352 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 398
Schwart v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 169
Pochi v MacPhee [1982] HCA 601
| Applicant: | ANTONIO TIMPERIO |
| Respondent: | MINISTER FOR IMMIRGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 1102 of 2002 |
| Delivered on: | 18 February 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 26 March 2003 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Mr Hurley |
| Solicitors for the Applicant: | Acquaro & Co Solicitors |
| Counsel for the Respondent: | Mr Gray |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
THAT the Application be dismissed.
THAT the Applicant pay the Respondent's costs on the Federal Court’s scale to be taxed in default of agreement.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 1102 of 2002
| ANTONIO TIMPERIO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The application by the applicant is to review the decision made personally by the respondent ("the Minister") on 19 July 2002 to cancel under s.501(2) of the Migration Act 1958 (Cth) ('the Migration Act") the visa then held by the applicant. The decision is a privative clause provision within s.474(2) of the Migration Act. The phrase "privative clause decision" in s.474(1) is defined in s.47(2) so at to mean, relevantly, a "decision … made under this Act". A decision will not be regarded as made under the Act if it involves a failure to exercise jurisdiction or an excess of jurisdiction.
The High Court in Plaintiff S157/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 195 ALR 24, held that s.474 is constitutionally valid on the basis that, properly construed, it does not preclude judicial review on the ground of jurisdictional error that would support the grant of prerogative relief under s.39B(1) of the Judiciary Act 1903 (Cth) ("the Judiciary Act") or the issue of constitutional writs pursuant to s.75(v) of the Australian Constitution.
Factual background
The applicant is a citizen of Italy born 19 October 1950. He entered Australia on 28 May 1954 when his family migrated to Australia. He has never left Australia. He was three years and seven months old when he arrived in Australia. At all times he has been a lawful resident in Australia or a lawful non-citizen.
The applicant has a lengthy criminal history. His criminal record started in earnest at the start of 1973 when he became a user of heroin. Until the major offences committed in 2001 referred to below, the applicant's crimes consisted of a range of serious property offences including theft and burglary, and some counts of possession and trafficking of heroin. The applicant has been sentenced to periods of imprisonment ranging from 12 months to four years with minimum periods ranging from nine months to 24 months in 1973, 1979, 1980, 1981, 1984, 1986, 1989 (suspended), 1991 and in 1994.
In 2001 the applicant committed particularly serious offences in respect of which he is currently serving a sentence at the Fulham Correctional Centre. The Victoria Police report indicates that the applicant assaulted an undercover police officer who had been trying to buy drugs from the applicant and that in the course of the assault the undercover police officer's leg was broken, he was assaulted and his gun was stolen by the applicant. The applicant was sentenced to two years imprisonment as a result of these offences. On appeal, his appeal was successful to the extent that the County Court allowed a non-parole period of
18 months.
The applicant arrived in Australia with his parents and brother and his brother died of natural causes (pneumonia) on 28 August 1996. Prior to his imprisonment the applicant resided with and supported his elderly parents (his father was aged 80 and his mother 77 at the time of the interview on 22 May 2002).
On 28 November 2001 the applicant acknowledged receipt at Fulham Correctional Centre of a notice dated 14 November 2001 of intention to consider cancelling of visa under s.501(2) of the Migration Act.
The Minister obtained information from:
·the applicant in a letter received 11 December 2001;
·the Fulham Correctional Centre by a report dated 12 March 2002;
·the applicant by an interview conducted by video on 22 May 2002;
·the applicant’s “girlfriend/de facto spouse” of eleven years in an interview conducted 27 May 2002; and
·the applicant's mother in an interview of 28 May 2002.
Decision under review
The decision under review was made by the Minister personally on
14 July 2002. The decision was made pursuant to s.501(2) of the Migration Act which provides as follows:
“501(2)The Minister may make cancel a visa that has been granted to a person if:
(a)The Minister reasonably suspects that the person does not satisfy the character test; and
(a) The person does not satisfy the Minister that the person passes the character test.”
The decision record shows that the Minister deleted the non-applicable options and thereby recorded his decision in the following terms:
“(d)I reasonably suspect that Mr Timperio does not pass the character test and Mr Timperio has not satisfied me that he passes the character test AND I have DECIDED TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA so I hereby cancel the visa.”
It is this decision for which the review is sought in this application. The applicant relied upon seven grounds in support of his application.
Construction of s.501 "a visa that has been granted"
The applicant's contention is that the Minister's decision was not authorised by s.501(2) of the Migration Act because the applicant did not hold "a visa that has been granted to a person".
It is necessary here to set out the legislative history by means of which the Minister's decision was made. Before 2 April 1984 the presence of persons who were not citizens of Australia was regulated under the immigration power found in the Constitution, s.51(xxvii). In Pochi v MacPhee [1982] HCA 601 the High Court concluded that the power then given by s.12 of the Migration Act to authorise deportation of aliens convicted of certain crimes was a valid law supported by the power within s.51(xix) to make laws with respect to "naturalisation and aliens". Until 2 April 1984 the title to the Migration Act indicated it was an Act relating to "immigration, deportation, and emigration". On 2 April 1984 the title was amended to its current form as an Act "relating to entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons".
In December 1989 the Migration (1989) Regulations (SR 1989 No 365) commenced. The applicant never obtained a visa or entry permit under these Regulations.
On 1 February 1993 the Migration (1993) Regulations (SR 1992 No 367) commenced. The applicant was never granted a visa under, or by, these Regulations.
On 24 December 1992 the Migration (Offences and Undesirable Persons) Amendment Act 1992 (Cth) (Act 213 of 1992) commenced. It introduced s.180A into the Migration Act. This provided:
Special power to refuse or cancel visa or entry permit
“180A(1)The Minister may refuse to grant a visa or an entry permit to a person, or may cancel a valid visa or valid entry permit that has been granted to a person if:
(a) subsection (2) applies to the person; or
(b) the Minister is satisfied that, if the person were allowed to enter or remain in Australia, the person would:
(i)be likely to engage in criminal conduct in Australia; or
(ii)… ; or
(iii)… ; or
(iv)…
(2)This subsection applies to a person if the Minister:
(a) having regard to:
(i)the person's past criminal conduct;
(ii)the person's general conduct;
is satisfied that the person is not of good character; or
(b) is satisfied that the person is not of good character because of the person's association with another person, or with a group or organisation, who or that the Minister has reasonable grounds to believe has been or is involved in criminal conduct.”
The Migration (Offences and Undesirable Persons) Amendment Act of 1992 did not have any transitional or saving provisions. The provisions in s 180A were renumbered and became s.501 (Migration Act reprint 8, page 589). They were substituted from 1 June 1999.
On 1 September 1994 the Migration Reform Act 1982 (Act No 184 of 1992) commenced. It made no changes to the migration system for granting visas. By ss.31(1) and (2), the Migration Act provided for classes of visas to be "prescribed by regulation" and for the additional classes found in ss.32, 33, 34, 35, 36, 37 and 38. By s.34 Parliament created the "absorbed person" visa.
On 1 September 1984 the Migration (1994) Regulations commenced. These repealed the 1993 Regulations. On the same date the Migration Reform (Transitional Provisions) Regulations (Cth) (SR 1994 No 261) commenced.
By Regulation 4(1) of the Migration Reform (Transitional Provisions) Regulations provided:
Entry permits in force before 1 September 1994 to continue in effect
“(1)Subject to regulation 5, if, immediately before 1 September 1994 a non-citizen was in Australia as a 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.”
Regulation 5 referred to persons who were in Australia before
1 September 1994 who held a permanent entry permit granted after
1 September 1992. It did not apply to the applicant.
By Regulation 3(1) the reform regulations provided:
“Permanent entry permit means 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.”
On 1 June 1999 the Migration Legislation Amendment (Strengthening Of Provisions Relating To Character And Conduct) Act 1998 (Act 114 of 1998) commenced. By s.23 it repealed s.501 and substituted s.501 in its present form (together with ss.501A - 501H). By s 28 the Migration Legislation Amendment (Strengthening Of Provisions Relating To Character And Conduct) Act provided:
Application - refusal or cancellation of visas on character grounds
“(1)The amendment made by item 23, to the extent that it relates to applications for visas, applies to applications that were made before, on or after the commencement of that item.
(2)The amendment made by item 23, to the extent that it relates to visas granted to a person, applies to visas granted before, on or after the commencement of that item.”
The applicant's case is that on 19 July 2002 he did not hold a visa "that has been granted (to him)" within s.501(2) on its proper construction. He submits that the reference to a visa being "granted" is a reference to a visa granted in accordance with the provisions found in Part 2, subdivisions AA, AB, AC, AE and AH. The applicant submits that the effect of regulation 3(1), 4(1) and 5 of the Migration Reform (Transitional Provisions) Regulations was to give his status a new description. That is that before 1 September 1994 the applicant was permitted to remain in Australia indefinitely as the holder of a permanent entry permit. Regulation 4(1) provided that a non-citizen who held such an entry permit was permitted to remain indefinitely in Australia with the entry permit continuing in effect on or after
1 September 1994 as a transitional (permanent) visa. The applicant contends that the effect of the statutory provisions was merely to affect a change in nomenclature and that he was not "granted" a visa nor did he achieve any new status. He contends that Parliament used the term "a visa that has been granted" in s.501(2) to describe a visa granted in accordance with Part 2 of the Migration Act in its various forms on or after 19 December 1989. He contends that on its proper construction s.501(2) only authorised the Minister to cancel a visa "that has been granted" to the person under the scheme for granting visas introduced into the Migration Act from, at least, 1 September 1994. The applicant submits that he has never been granted such a visa and thus the Minister acted on an erroneous view of the law and purported to cancel a visa which did not exist and that this constitutes jurisdictional error. That is the Minister had no jurisdiction to cancel a visa that had not been "granted".
Insofar as the applicant contends (4.11 of the applicant's revised contentions of fact and law) that the Migration (Offences and Undesirable Persons) Amendment Act for 1992 did not have any transitional savings provisions and therefore had only prospective operation, and it should be construed as applying to only visas or entry permits "granted after it commenced", the respondent contended that no transitional or savings provisions were required to empower the Minister to exercise his discretion under s.180A to cancel a visa or entry permit already held by a person on the date of the amendment. This, he contended, was because the cancellation power, on its face, applied to a visa or entry permit that had been granted to a person without temporal limitations as to time of grant. The power was prospective, not retrospective in its application as the discretion could only be exercised after the commencement of the amendment and any cancellation could not be backdated to a date before the introduction of the power. In my view this is demonstrably correct. (See Hall v Minister for Immigration and Multicultural & Indigenous Affairs (2000) FCA 415 at [5]).
A similar argument to that put by the applicant was rejected by Finklestein J in Hall v Minister for Immigration and Multicultural and Indigenous Affairs (2000) FCA 415. As the applicant seeks to distinguish this decision I will reproduce the relevant part:
23. Mr Hall argues that notwithstanding these transitional provisions and reg 4 (1) he currently holds an entry permit and does not hold a visa. It follows, according to this argument, that the Minister does not have power to cancel Mr Hall's entry permit because he only has power to cancel a visa. If correct, the Minister could not cancel Mr Hall's visa under the former section 501 nor under the section as it presently stands.
24. However, I do not accept that this argument is correct. The Migration Act is the legislation pursuant to which the Commonwealth grants permission to non-citizens who wish to travel to and into Australia or remain in Australia. When it was first enacted in 1958, permission to enter and remain in Australia was known as an "entry permit". A non-citizen could apply for and be granted an entry permit or temporary entry permit. In its original form the legislation also contemplated the grant of a visa. Although not clear until the introduction of s 11A by Act number 117 of 1979, a visa was permission given to a person who was not in Australia, but who wished to travel to Australia or to a person who intended to leave Australia and wished to return. I note in passing that in 1958 the Minister could only cancel a temporary entry permit: See s7 of the 1958 Act. It could not cancel an entry permit, although if an entry permit had been improperly obtained it would have no effect: See section 16 of the 1958 Act.
25. As a result of amendments made by the Migration Legislation Amendment Act 1989 (Cth) the distinction between an entry permit and a visa became blurred. For example, the 1989 Act introduced an "entry visa" which would operate as an entry permit if the holder entered Australia: See the section introduced as s10 of the Migration Act.
26. The precursor to s 501 was introduced and s 180A of the Migration Act by the Migration (Offences and Undesirable Persons) Amendment Act 1992 (Cth). In certain specified circumstances, the Minister was given power to "refuse to grant a visa or an entry permit to a person, or (to) cancel a valid visa or a valid entry permit that has been granted to a person".
27. I have already mentioned that important changes to the Migration Act were made by the Migration Reform Act. So far as is relevant for present purposes, one such change was that permission to travel to and enter Australia and permission to remain in Australia were henceforth known as visas. A non-citizen was no longer entitled to an entry permit. It was for this reason that the transitional provisions in s 40 of the Migration Reform Act were introduced.
28. The effect of the transitional provisions, and the Regulations to which I have referred, is that permission to remain in Australia, which was once known as "entry permit" is to be treated as permission to remain in Australia pursuant to "a visa".
29. Moreover, the power to cancel a visa that is conferred by
s 501(2) should, in my opinion, be construed to allow the cancellation of a permit to remain in Australia, which by force of the transitional provisions, continues in force as a visa. That is, because permission to remain in Australia granted before the Migration Reform Act continues in force as a visa, it may be cancelled as a visa. Any other construction would result in the absurd position that a non-citizen who constitutes a danger or threat to the Australian community by reason of his or her past criminal conduct could not be removed from Australia.”
I note in particular the words used by His Honour in paragraph 29. That is:
“Because permission to remain in Australia granted before the Migration Reform Act continues in force as a visa, it may be cancelled as a visa.”
In other words, His Honour made it clear that he regarded a prior "grant" of an entry permit to now be taken to be, via the transitional provisions cited in the judgment, the "grant" of a visa for the purposes of s.501(2).
I am not satisfied that the applicant has established any basis upon which that decision could reasonably be distinguished from the issue raised by the applicant in this case.
That issue was also addressed by Keifel J in Andary v Minister for Immigration and Multicultural Affairs (2002) FCA 1380. At paragraph 8 her Honour said:
“He was therefore the holder of a permanent entry permit within the meaning of reg 3 of the Migration Reform (Transitional Provisions) Regulations. As Dowsett J explained, the combined effect of s40(5) of the Migration Reform Act 1992 (Cth) as subsequently amended in 1994 and reg 4 of the abovementioned Regulations which is set out below, was that on and after 1 September 1994 the applicant became the holder of transitional (permanent) visa. It was that visa which was liable to cancellation.”
In Andary v Minister for Immigration and Multicultural and Indigenous Affairs the argument regarding retrospectivity which has been raised in this case was also raised. Her Honour rejected that argument, referring to Regulation 4 her Honour said:
“The regulation does not apply only to persons arriving in Australia after 1 September 1994. It does not, however, have a retrospective operation or effect. The permanent entry permit has continued in effect. It was itself liable to cancellation in certain circumstances.”
Her Honour made it clear that the applicant in that case, who had been the holder of a permanent entry permit prior to 1 September 1994, was the holder of a visa, (a transitional) (permanent) (visa) after that date and such visa was liable to cancellation.
Whilst the arguments in those two cases did not specifically address the point now raised by the applicant, namely that his visa was not "granted" it may be that argument is misconceived. Either the transitional (permanent) visa was granted by Regulation 4 of the Migration Reform (Transitional Provisions) Regulations or he was granted an entry permit when he entered Australia with his parents in 1954, which entry permit continues in effect on or after 1 September 1994 as a transitional (permanent) visa. The Minister had power to cancel that visa.
The Constitutional point and "absorbed person" visa
The applicant submits that if he held "a visa" it was one which was taken to have been granted to him by operation of law under s.34(2) of the Migration Act from 1 September 1994. He contends that the terms of s.34 constitute the recognition by Parliament that certain persons had achieved an accrued right by September 1994 (of being absorbed persons) which should not and was not removed. He contends that the creation of the "absorbed person" recognises that Parliament cannot classify as "aliens" persons who could not sensibly meet this description. He argues that the applicant could not sensibly have been described as an "alien" on either the 2 April 1984 or the 1 September 1984. Therefore a law made under the alien power on either of those dates could not authorise removal of the applicant. The applicant seeks to distinguish the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; ex parte Te (2002) 193 ALR 37 and re Minister for Immigration and Multicultural Affairs; ex parte Dang (2002) 193 ALR 37.
Since this matter was argued the High Court handed down its decision in Shaw v Minister for Immigration and Multicultural Affairs (2003) HCA 72 (9 December 2003). At paragraph 32, the majority Gleeson CJ, Gummow and Hayne JJ said of Te:
“This case should be taken as determining that the alien's power has reached all those persons who entered this country after the commencement of the Citizenship Act on 26 January 1949 and who were born out of Australia of parents who were not Australian citizens and who had not been naturalised.”
It seems to me that clear statement of the law is fatal to the applicant's argument. At paragraph 31 the majority said:
“The conclusion reached is that the applicant entered Australia as an alien in the constitutional sense, re Minister for Immigration and Multicultural Affairs; ex parte Meng Kok Te establishes that, this being so, he did not lose that status by reason of his subsequent personal history in this country. Upon the cancellation of his visa, he became an "unlawful non-citizen" within the meaning of the Act.”
Unreasonableness
This ground is a contention by the applicant that the decision made by the Minister was so unreasonable that no reasonable person could have made it. What is relied upon in support of that contention is that it is the combined operation of the decision on the applicant and his parents which make it so unreasonable. The facts relied upon are:
·The effect was to deprive the two Australian citizen parents of the applicant of any prospect of having the benefit of the company or support of their surviving child in their final years.
·It exposed the applicant to a cruel and unusual punishment for his criminal offences, being removal to Italy in circumstances where he was, by reason of his language skills and physical condition, unable to fend for himself.
·That there was no evidence or other material to justify the making of a decision in that there was no evidence to support the conclusion that any other person would find out about the decision and therefore regard it as a deterrent.
·The Minister had not warned the applicant that he by his previous criminal conduct was liable to have any visa cancelled.
In addition it was argued that the warnings that were given to the applicant that he might be subject to deportation were given before 1989 and before the power to cancel a visa in s 180A (which arose on 24 December 1992). It was contended that 1981 was the last warning and it was unreasonable for the Minister to wait until 2002 in that the applicant might conclude that the warning was not to be acted upon. The applicant conceded however that the assault against the police officer which was probably the most serious of the offences for which the applicant was convicted itself occurred twenty years after the last warning.
The nature of the unreasonableness ground of review is explained in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 by Gummow J at 654:
“… Where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it would be very difficult to show that no reasonable decision maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or with other matters, goes to establish or deny that the necessary criterion has been met was all one way … that other decision makers may have reached a different view, and that it is done so reasonably is not to the point.”
In Luu v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA at 369, the Full Court of the Federal Court said:
“It is true that the material is largely historical, that is what the appellant had done in the past or was perceived to have done in the past, and that there was no real new information with respect to those critical matters acquired in the period July 2000 and March 2001. There may be circumstances when the administrative decision maker acting in part on information of some antiquity in the fact of the elapse of time might fall within the "Wednesbury unreasonableness" principle. But in this matter we are not persuaded that the Judge at first instance erred in concluding in all the circumstances that the decisions of the respondent did not fall within that principle. Indeed, in the circumstances, to accede to propositions put in the regard on behalf of the appellant would amount to intervening in the merits of the decision and to substitute for the decisions of the respondent a view on the merits of the case. The Court is not entitled to do that.”
In this case there was clearly evidence before the Minister which could support the finding made by him including the applicant's lengthy criminal history, the consequent risk of recidivism and the interests of the Australian community. As I have pointed out, the commission of violent criminal conduct by the applicant in 2001 was a reasonable cause for the Minister making the decision to cancel when he did.
Minister personally
The applicant contended that because the decision was made by the Minister personally the applicant (and his parents) are denied merits review by the Administrative Appeals Tribunal (the AAT). The applicant contends that the respondent was not advised of this and there was no justification for it. He contends the respondent was not advised that even if the AAT made a decision in favour of the applicant the respondent could overturn such a decision by operation of s.501A(2) of the Migration Act. He contends that there is no explanation as to why this course was not adopted.
The applicant further contends that the proper construction of the powers given by s.501A(2) of the Act, in light of the power given to the Minister by s.501(2) mean that the Minister should only make a decision under s.501(2) personally when he decides that it is in the national interest to do so. If he makes this decision then the right given by Parliament to the applicant (and his family) to seek merits review is removed on the basis that there is no point allowing this right as the national interest would require any favourable decision to be set aside.
As to the construction argument contended for by the applicant, I agree with the respondent's submission that the argument is inconsistent with the structure and terms of the Act which make it clear that the two powers are separate and distinct.
Sections 501(1) and (2)
This can be contrasted with s.501(3) where natural justice does not apply where the Minister is empowered to cancel the applicant's visa if he is satisfied that it is in the national interest. In Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 959 (Tamberlin J 6 August 2002) the Federal Court expressly rejected a similar submission to the effect that the Minister had acted for an ulterior or non bona fide purpose in making the decision to refuse the visa when the Minister could have used other powers but elected not to do so.
In Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [85] the High Court specifically approved the decision of the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Gunner (1998) 84 FCR 400. Gleeson CJ and Gummow J (with whom Hayne J agreed) said (at [87]):
“A further argument, which was also similar to an argument that was considered and rejected by the Full Court of the Federal Court in Gunner [at FCR 409] concerned s 502. Section 500 of the Act provides the merits review by the Tribunal of decisions under s 501, other than decisions to which a certificate under s 502 applies. Thus, it was argued, the focus of attention in considering the seriousness of the circumstances and the national interests should be the exclusion of the decision from merits review by the Tribunal. As the Full Court observed in Gunner [at FCR 409] the circumstances in question are the respondent's past criminal conduct. It is the seriousness of that conduct which has to be assessed in the national interest which dictates that people who are engaged in sufficiently serious crime should not have the benefit of an Australian visa.
The effect of s 502 when invoked, is to ensure that the Minister is to have the final and only say on the question of whether the person in question should or should not be entitled to enter or be in Australia.”
This matter was also considered by McInnis FM in Griffiths v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FMCA 249 (at paragraph 93) where he said:
“In my view, the Minister is not bound to take into account as a relevant consideration the fact that there is an opportunity to refer this decision to a delegate. There is no doubt that the Minister has the power to exercise the discretion vested in him pursuant to s 501(2) and I cannot accept that in the circumstances of this case the failure to consider the referral of the decision to a delegate and/or advise the applicant that an opportunity existed for that decision to be made could be regarded in any way as a relevant issue which the Minister is bound to take into account in making his decision (see W352 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 398 (per French J 5 April 2002) at [32]).”
I agree with and adopt that reasoning.
Identity of the visa cancelled
The applicant contends that the decision of the Minister was not authorised by s.501(2) of the Migration Act because the Minister purported to cancel a visa of the visa class "migrant-permanent" when no such visa class exists and when this was not the visa held by the applicant. The reference to the visa appears at Court Book 11 and the following appears:
“Visa in effect.
Visa class: Migrant-Permanent
Stay period of Visa: Indefinite.”
The applicant contends that he meets the criterion for the "absorbed person" visa created by s.34. The applicant contends that the creation of the "absorbed person" recognises that Parliament, according to the explanatory memorandum for the Migration Legislation Amendment Bill intended to bestow visas on:
“A small number of absorbed persons, who are lawfully in Australia as permanent residents despite not holding an entry permit.”
The applicant submits he is not in this class as he has at all times since 28 May 1954 held an entry permit. However, he submits the explanatory memorandum erroneously assumes that a person could be lawfully in Australia:
Despite not holding an entry permit.
He contends that he was always lawful and he became "absorbed" because he was lawful. The former provisions he contend operated so that "unlawful" persons (those who stayed without an entry permit) also became "absorbed". He submits that the words used by Parliament in its legislation are to be given effect, not the words used in the explanatory memorandum. Thus, the applicant contends that he was the holder of either:
(a)An absorbed person's visa pursuant to s.34 (1); or
(b)A transitional (permanent) visa pursuant to Regulation 4 of the Migration Reform (Transitional Provision) Regulations 1994.
He contends that the visa the Minister purported to cancel – "migrant – permanent" was not either of the visas that he could have held and in any event does not exist. He contends that the Minister purported to cancel a visa which did not exist and that this involves jurisdictional error. He relied upon the decision in Schwart v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 169. He contends that if the Minister did not identify the visa or know what he was cancelling, he misunderstood the task that he was performing and purported to cancel a visa which did not exist, and resulted in jurisdictional error.
It may be the question of whether the applicant has acquired an absorbed person visa must be attenuated by some doubt. It depends upon the applicant being able to establish that he had, before the
2 April 1984 "ceased to be an immigrant". The members of the High Court in Te's case had different views on this issue (see in particular paragraphs 25, 26, Reasons for Judgment of Gleeson CJ). The respondent contends that the better view is that s.34 does not apply. In any event, it does not seem to me to be essential to the argument put by the applicant to decide which visa he may have held. The point he makes in this ground is that the Minister did not identify the precise visa that was being cancelled and that the applicant was entitled to have the Minister know exactly what visa he was cancelling because one could not be certain that the Minister was aware of the nature of the visa being cancelled and thus the matters that he ought to be taking into account.
Schwart's case is relied upon by the applicant to contend that as a result the Minister could not form a view as to the nature and consequence of the decision he was engaged in because he did not have a general understanding of the nature and character of the visa he was being asked to cancel and this was a jurisdictional error which invalidated his decision.
The respondent contends that Schwart's case is distinguishable.
In Schwart's case it was clear that the Minister's decision took account of and was based upon a departmental report. That report was headed:
“Issues for Consideration of Possible Cancellation of Subclass 155-5 Year Resident Return Visa Under s 501 (2) of the Migration Act 1958.”
The reference in heading to the visa as a subclass 155-5 Year Resident Return visa was an error. In fact, the applicant's visa was a permanent resident visa category K1412. In determining that the Minister's decision was invalid, Selway J noted:
“One need only contrast the rights applicable to a permanent resident visa, a student's visa and a tourist visa ... it seems to me that the statutory context does mean that the words, "the visa" in s 501 (2) of the Act (including the definitive article) should be interpreted as requiring, as a matter of objective fact, that the Minister have at least a general understanding of the nature and character of the visa that the Minister is asked to cancel. This does not mean that every minor error will result in invalidity ... but it does mean that the Minister must understand the nature and consequence of the decision he is being asked to make. In my view, that understanding is a jurisdictional fact.”
His Honour went on to note that the Minister could not form a view as to the nature and consequence of a decision he was engaged in because the material he relied upon did not enable him to do so and was inconsistent in relation to a matter that was important to his decision making; namely whether the applicant held a permanent visa (with all that might imply) as against a five year visa.
The respondent contends that decision in Schwart's was different in that the Minister believed that he was cancelling a five year visa when in fact he was cancelling a permanent visa. Whereas, in the present case, whatever description one might give to the visa held by the applicant, there was no doubt that the Minister was aware that it was a permanent visa and more importantly the material upon which he formed his view as to the nature and consequence of his decision was not visciated because he was aware that it was a permanent visa he was cancelling. I agree with the respondent's submissions in this regard and note that Selway J (at paragraph 16) noted that not every minor error would result in invalidity. Use of the word "migrant - permanent", although not descriptive of a particular visa, makes it clear, in my view, that the Minister was aware that he was cancelling a permanent visa. Thus, I am not satisfied that on this ground the Minister's decision is vitiated.
The other grounds contained in the Amended application of the applicant were not relied upon.
It follows then that I am not satisfied that there has been any jurisdictional error by the Minister and the application must be dismissed.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date: 18 February 2004
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