FEDERAL COURT OF AUSTRALIA

Cheryala v Minister for Immigration and Border Protection [2018] FCAFC 43

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the Respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

The Court:

1    The Appellant in the present proceeding, Mr Chafic Cheryala, is a citizen of Lebanon.

2    In June 2016, he was granted a Bridging Visa E subclass 050. On 12 June 2017, he was arrested by New South Wales police and taken into custody. He was subsequently charged with three offences, namely:

    take and detain a person with intent to obtain advantage (contrary to s 86(1)(b) of the Crimes Act 1900 (NSW) (the “Crimes Act”));

    sexual intercourse without consent (contrary to s 61I of the Crimes Act); and

    assault with an act of indecency (contrary to s 61L of the Crimes Act).

He was later released on bail.

3    While reporting to Bankstown Police Station in Sydney as a condition of bail on 22 June 2017, Mr Cheryala was served with a Notice of Intention to consider cancelling his visa. The ground specified in that Notice was s 116(1)(g) of the Migration Act 1958 (Cth) (the “Migration Act”) and reg 2.43(1)(p)(ii) of the Migration Regulations 1994 (Cth) (the “Migration Regulations”).

4    Mr Cheryala’s visa was then cancelled and he was taken into custody at the Villawood Immigration Detention Centre. The notification of the cancellation of the visa also informed Mr Cheryala that he could apply for review of the decision “within two (2) working days after the day on which you received this notice”.

5    On 25 June 2017, Mr Cheryala made an application for a new bridging visa. On 27 June 2017, Mr Cheryala was informed that his application was invalid. As the application was invalid, it was not accepted or processed. Mr Cheryala, it was concluded, did not satisfy a condition of validity, namely Item 1305(3)(g) of Sch 1 of the Migration Regulations. Item 1305(3)(g) imposed a requirement that an applicant “has not previously held a visa that has been cancelled on a ground specified in paragraph 2.43(1)(p) or (q)”.

6    On 9 August 2017, the charges against Mr Cheryala were withdrawn and the prosecution was dismissed.

7    A proceeding was then commenced in the Federal Circuit Court of Australia. A declaration was sought that reg 2.43(1)(p)(ii) of the Migration Regulations was ultra vires and invalid or, in the alternative, a declaration as to the invalidity of Item 1305(3)(g) of Sch 1 of the Migration Regulations. Other relief was also sought, including an order quashing the decision that the second application for the bridging visa was invalid.

8    On 15 September 2017 a Judge of that Court dismissed the proceeding: Cheryala v Minister for Immigration and Border Protection [2017] FCCA 2261, (2017) 324 FLR 322.

9    Mr Cheryala now appeals to this Court.

10    In summary form, it has been concluded that:

    delegated legislation, such as the Migration Regulations and reg 2.43(1)(p)(ii) in particular, may be held to be invalid if it is “disproportionate” to the legislative power conferred by the enabling statute;

    Item 1305(3)(g) of Sch 1 to the Migration Regulations was not “disproportionate” to the power conferred by s 504 of the Migration Act; and

    Regulation 2.43(1)(p)(ii) and Item 1305(3)(g) do not infringe any presumption of innocence or any common law right to liberty.

11    The appeal is to be dismissed.

THE MIGRATION ACT & REGULATIONS

12    The legislative provisions of present relevance are to be found interspersed throughout both the Migration Act and the Migration Regulations. The trail of discerning those provisions, however, is somewhat difficult to follow – at least without the benefit of Senior Counsel for the Respondent Minister spreading breadcrumbs along the path of judicial reasoning.

13    Those provisions nevertheless start with s 4 of the Migration Act which sets forth as follows the object of the Act:

Object of Act

(1)    The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

(2)    To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.

(3)    To advance its object, this Act provides for non-citizens and citizens to be required to provide personal identifiers for the purposes of this Act or the regulations.

(4)    To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.

(5)    To advance its object, this Act provides for the taking of unauthorised maritime arrivals from Australia to a regional processing country.

Full effect should be given to the “object” set forth in s 4, including a matter as “broad” as the “national interest”: Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256 at [74], (2004) 139 FCR 505 at 523 per Kiefel and Bennett JJ.

14    Consistent with the object of the Act as set forth in s 4, s 29 provides a discretionary power upon the Minister to grant a visa. Section 31 provides for “prescribed classes of visas”. Section 31(2)(g) provides for “bridging visas” as provided for in s 37. Section 37, in turn, provides as follows:

There are classes of temporary visas, to be known as bridging visas, to be granted under Subdivision AF.

Further to s 31 of the Act, reg 2.01(2) (Items 4 to 12) provides for various classes of bridging visa.

15    Section 42 of the Act relevantly provides that “a non-citizen must not travel to Australia without a visa that is in effect”.

16    Section 46(3) provides that the “regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application”. Section 46(4) then provides as follows:

Prescribed criteria for validity

…

(4)    Without limiting subsection (3), the regulations may also prescribe:

(a)    the circumstances that must exist for an application for a visa of a specified class to be a valid application; and

(b)    how an application for a visa of a specified class must be made; and

(c)    where an application for a visa of a specified class must be made; and

(d)    where an applicant must be when an application for a visa of a specified class is made.

Further to s 46 of the Act, reg 2.07(1)(c) provides for “other matters relating to [an] application” for particular classes of visas, those “other matters” being found in Sch 1 of the Migration Regulations.

17    Section 65(1) provides that “after considering a valid application for a visa” the Minister is to either grant the visa or refuse to grant the visa.

18    Section 116 confers power on the Minister to cancel a visa. Section 116(1)(g), the provision of present relevance, provides as follows:

Power to cancel

(1)    Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

…

(g)    a prescribed ground for cancelling a visa applies to the holder.

Section 119 provides for the giving of notice of a proposed cancellation and s 120 provides for the giving of certain information to a visa holder. Sections 119 and 120 also include requirements to give the visa holder an opportunity to comment on the apparent grounds for cancellation and relevant information. Section 121 specifies requirements in relation to any such invitation to comment.

19    Further to s 116 of the Act, reg 2.43 further addresses the “[g]rounds for cancellation” of a visa. The provision of present relevance is reg 2.43(1)(p)(ii) which at the relevant time provided as follows:

Grounds for cancellation of visa (Act, s 116)

(1)    For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

…

(p)    in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa—that the Minister is satisfied that the holder:

…

(ii)    has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country; or

…

Regulation 2.43(1)(p)(ii) assumes relevance because Item 1305(3)(g) of Sch 1 to the Migration Regulations specifies that for the purposes of reg 2.07(1)(c) one of the “other matters relating to [an] application” for a visa is that an applicant “has not previously held a visa that has been cancelled on a ground specified in paragraph 2.43(1)(p)”.

20    A decision to cancel a bridging visa held by a non-citizen who is in immigration detention because of that decision is a “Part 5-reviewable decision” (s 338(4)(b)) and is accordingly reviewable by the Administrative Appeals Tribunal.

21    Regulation 2.25 should be finally noted. Although the terms of that Regulation are not without difficulty, reg 2.25(2) provides that the Minister “may grant [a] non-citizen” a Bridging E (Class WE) visa if satisfied of the matters set forth in reg 2.25(2)(a) or (b). None of those matters include Item 1305(3)(g).

22    Section 504(1) provides for the Governor-General to “make regulations, not inconsistent with this Act, prescribing all matters which by this Act are … necessary or convenient to be prescribed for carrying out or giving effect to this Act”.

23    When considering an application for a bridging visa, an applicant who has had a visa cancelled pursuant to s 116(1)(g) is thus precluded from making a “valid” application and s 65 cannot operate to confer any power to grant or refuse the application. That section only operates where there has been a “valid application”. By reason of Item 1305(3)(g) a “valid application” for a visa may for present purposes not be made by an applicant who has previously held a visa that has been cancelled pursuant to s 116(1)(g) by reason of the operation of reg 2.43(1)(p)(ii).

REGULATIONS & THE NEED FOR PROPORTIONALITY

24    An argument as to the validity of a regulation made pursuant to a statutory provision may involve either an argument as to:

    simple ultra vires, namely an argument as to whether the regulation properly construed falls within the ambit of the enabling legislation (cf. City of Footscray v Maize Products Pty Ltd (1943) 67 CLR 301 at 308 per Rich J; Australian Maritime Officers’ Union v Assistant Minister for Immigration and Border Protection [2015] FCAFC 45 at [56] to [57], (2015) 230 FCR 523 at 538 per Gordon, Katzmann and Griffiths JJ); or

    whether a regulation, whilst ostensibly falling within the description of a regulation authorised by the enabling legislation, is a “disproportionate” exercise of the power conferred.

The former category of argument proceeds upon the basis that a power to make regulations “does not enable the [making of] … regulations ‘which go outside the field of operation which the Act marks out for itself’”: R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 187 per Gibbs CJ citing Morton v Union Steamship Company of New Zealand (1951) 83 CLR 402 at 410 per Dixon, McTiernan, Williams, Webb, Fullagar and Kitto JJ.

25    The argument advanced on behalf of Mr Cheryala is of the latter kind.

26    Subject only to the resolution of this latter argument, there could be no question but that a regulation attaching consequences to the fact of a person being “charged with an offence” could readily fall within the regulation making power conferred by s 504 of the Migration Act. Such a regulation would be one readily capable of being characterised as “necessary or convenient” to be prescribed for carrying out or giving effect to the Act. Such a regulation could readily be seen as one “necessary or convenient” (s 504) to the “national interest” (s 4(1)) of regulating the entitlement of non-citizens to remain in Australia. Further to the argument in fact advanced, it was common ground that a regulation (or other forms of what have been described as “delegated legislation”) may be declared to be invalid if it travels so far beyond what would otherwise be authorised as to be “disproportionate” to the power conferred.

27    Not explored in the present case was what has been referred to as the “controversial” role of “unreasonableness, proportionality and uncertainty in relation to subordinate instruments”: cf. Dai v Minister for Immigration and Citizenship [2007] FCAFC 199 at [35], (2007) 165 FCR 458 at 467 per Gyles J. A further issue not explored in the submissions was any question as to whether any authority or legislative competence to enact a constraint upon the common law presumption of innocence had to be found in the enabling statute itself as opposed to an exercise of a regulation making power by a Minister. Although the Commonwealth Legislature could abrogate a common law right by sufficiently clear statutory language, left unexplored is the competence of the Commonwealth Legislature to purportedly authorise a Minister by regulation to abrogate a common law right or the certainty with which such a power was to be expressed.

28    Confined as the argument was, it was thus common ground that the two principal matters to be resolved by this Court were whether reg 2.43(1)(p)(ii) either by itself or in combination with Item 1305:

    infringed any common law presumption of innocence or the liberty of the subject; and/or

    whether there was “a reasonable connexion” between the regulations and s 504 of the Migration Act: Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 (“Nationwide News”).

29    The question in Nationwide News was whether s 299(1)(d)(ii) of the Industrial Relations Act 1988 (Cth) was authorised by s 51(xxxv) and (xxxix) of the Commonwealth Constitution. “The argument”, as summarised by Mason CJ, raised “a question about the application of s. 51(xxxv) to a matter which is incidental to the subject matter of the power rather than a question about the scope of the incidental power contained in s. 51(xxxix)” of the Constitution: (1992) 177 CLR at 26. In resolving that question, the Chief Justice observed (at 28 to 29):

… if the purpose of the impugned law is within power, that is enough, no matter that the connexion between the law and the subject matter is remote and that the difficulties created for many persons affected are out of all proportion to the advantage gained. Taken in isolation, the statement may also appear to suggest that matters of degree are for Parliament and not for the Court.

Nevertheless, it has long been accepted that it is for the Court to determine whether there is a reasonable connexion between the law and the subject matter of the power and that this is very often largely a question of degree. In other words, the question of degree is not merely a matter for Parliament; although the Court will give weight to the view of Parliament, it is a matter for the Court in determining whether a reasonable connexion exists.

(Footnotes omitted.)

The Chief Justice then referred to Davis v Commonwealth (1988) 166 CLR 79, and continued (at 30 to 31):

Davis establishes two propositions. First, that, even if the purpose of a law is to achieve an end within power, it will not fall within the scope of what is incidental to the substantive power unless it is reasonably and appropriately adapted to the pursuit of an end within power, i.e., unless it is capable of being considered to be reasonably proportionate to the pursuit of that end. Secondly, in determining whether that requirement of reasonable proportionality is satisfied, it is material to ascertain whether, and to what extent, the law goes beyond what is reasonably necessary or conceivably desirable for the achievement of the legitimate object sought to be attained and, in so doing, causes adverse consequences unrelated to the achievement of that object. In particular, it is material to ascertain whether those adverse consequences result in any infringement of fundamental values traditionally protected by the common law, such as freedom of expression.

(Footnotes omitted.)

The Chief Justice concluded that s 299(1)(d)(ii) was not authorised by s 51(xxxv) of the Constitution. So, too, was that the conclusion of the remaining members of the Court. But in so concluding, Brennan J voiced as follows the limited role to be discharged by the Courts (at 43 to 44):

A court will interpret laws of the Parliament in the light of a presumption that the Parliament does not intend to abrogate human rights and fundamental freedoms but the court cannot deny the validity of an exercise of a legislative power expressly granted merely on the ground that the law abrogates human rights and fundamental freedoms or trenches upon political rights which, in the court’s opinion, should be preserved. A function of that kind may be conferred on a court exercising a jurisdiction to review judicially laws enacted under a Constitution containing a Bill of Rights, but our Constitution does not contain a Bill of Rights. Indeed, the 1898 Constitutional Convention rejected a proposal to include an express guarantee of individual rights based substantially on the 14th Amendment to the Constitution of the United States and including a right to due process of law and the equal protection of laws. …

The courts are concerned with the extent of legislative power but not with the wisdom or expedience of its exercise.

(Footnotes omitted.)

His Honour further observed (at 52):

The role of the court in judicially reviewing a law that is said to curtail the freedom unduly and thereby to exceed legislative power is essentially supervisory. It declares whether a balance struck by the Parliament is within or without the range of legitimate legislative choice. In a society vigilant of its democratic rights and privileges, it might be expected that the occasions when the Parliament deliberately steps outside the range of legitimate choice would be few.

30    The same approach was adopted by the High Court in Attorney-General (SA) v Adelaide City Corporation [2013] HCA 3, (2013) 249 CLR 1. There in question was the power conferred on councils by s 667 of the Local Government Act 1934 (SA) to make by-laws “generally for the good rule and government of the area, and for the convenience, comfort and safety of its inhabitants”. A by-law made by the Adelaide City Corporation prohibited persons from (inter alia) preaching, canvassing, haranguing or distributing printed material on any road without the permission of the Council. It was concluded that a prohibition of such activities was within the scope of the power conferred. In so concluding, French CJ observed (at 37 to 38):

[55]    … Proportionality is not a legal doctrine. In Australia it designates a class of criteria used to determine the validity or lawfulness of legislative and administrative action by reference to rational relationships between purpose and means, and the interaction of competing legal rules and principles, including qualifications of constitutional guarantees, immunities or freedoms. Proportionality criteria have been applied to purposive and incidental law-making powers derived from the Constitution and from statutes. They have also been applied in determining the validity of laws affecting constitutional guarantees, immunities and freedoms, including the implied freedom of political communication ...

[56]    A high threshold test, which falls into the class of proportionality criteria, was applied to determine the validity of delegated legislation by Dixon J in Williams v Melbourne Corporation [(1933) 49 CLR 142]. His Honour, speaking of unreasonableness in the context of a purposive by-law making power, pointed out that although there might, on the face of it, be a sufficient connection between the subject of the power and that of the by-law:

“the true character of the by-law may then appear to be such that it could not reasonably have been adopted as a means of attaining the ends of the power. In such a case the by-law will be invalid, not because it is inexpedient or misguided, but because it is not a real exercise of the power.”

(Footnote omitted.)

The Chief Justice went on to refer to Commonwealth v Tasmania (1983) 158 CLR 1 (“Tasmanian Dam Case”) and South Australia v Tanner (1989) 166 CLR 161 (“Tanner”) and concluded (at 40):

[59]    The high threshold test for reasonable proportionality should be accepted as that applicable to delegated legislation made in furtherance of a purposive power.

[60]    The proportionality test formulated by Dixon J in Williams, adopted by Deane J in the Tasmanian Dam Case, and accepted in Tanner, makes it clear that a reviewing court is not entitled to substitute its own view of what would be a reasonable law for that of the legislature or a body exercising delegated legislative power. So formulated, the criterion of reasonable proportionality can be regarded as an application of the unreasonableness criterion, adapted to a purposive law-making power. Indeed, in Tanner the majority echoed some of the language of Griffith CJ in [Widgee Shire Council v Bonney (1907) 4 CLR 977], when their Honours observed:

“It is not enough that the court itself thinks the regulation inexpedient or misguided. It must be so lacking in reasonable proportionality as not to be a real exercise of power.”

See also: Murphy v Electoral Commissioner [2016] HCA 36 at [32], (2016) 90 ALJR 1027 at 1037 per French CJ and Bell J.

31    Reference should also be made to the decision of the Full Court of this Court in Vanstone v Clark [2005] FCAFC 189, (2005) 147 FCR 299. In issue in that case was the validity of a written determination by the Minister for Immigration and Multicultural and Indigenous Affairs which provided that the conviction of a person of an offence for which there was a penalty of imprisonment was to be taken as “misbehaviour” for the purposes of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth). Section 4A of that Act permitted the Minister to make a determination providing that “specified behaviour” was to be taken to be “misbehaviour”. The determination was held to be invalid. Chief Justice Black concluded (inter alia) that the determination fell outside of the legislative power as the relevant behaviour is not “specified” behaviour as required by s 4A(1): [2005] FCAFC 189 at [13], (2005) 147 FCR at 306. Weinberg J adopted a different approach in reaching the same conclusion. The approach pursued by Weinberg J was to conclude that the determination was not reasonably proportionate to the purpose for which s 4A had been enacted. In so concluding, Weinberg J observed (at 343 to 344):

[162]    In my opinion, the primary judge correctly held that cl 5(1)(k) did not meet the requirements of reasonable proportionality. The empowering provision under which the 2002 Determination was made seems to me to be properly characterised as “purposive”. It was not designed as an end in itself, but rather to facilitate a process by which some certainty, and consistency, could be injected into the possible removal of [Aboriginal and Torres Strait Islander Commission] Commissioners. Although s 4A does not say so in terms, the power that it conferred upon the Minister was intended to enable certain acts to be characterised as “misbehaviour” without the need for them to be given individual consideration.

[163]    I agree with his Honour that the term “misbehaviour” is inherently vague, and lacks precision. Dictionary definitions are unhelpful, and say little, if anything, about how that term is to be understood in any particular situation. Examples of cases where “misbehaviour” has been established are generally unhelpful. In this area context is all-important. When an Act provides for the removal of a statutory office-holder on the ground of “misbehaviour”, the meaning to be accorded to that term must be gleaned from its statutory context.

The third member of the Court had died whilst judgment was reserved and the parties consented to the two remaining members deciding the case: Federal Court of Australia Act 1976 (Cth) s 14(3).

32    It should also be noted that personal liberty remains a right which is “subject to reasonable regulation for the purposes of an ordered society”: Evans v New South Wales [2008] FCAFC 130 at [72], (2008) 168 FCR 576 at 594 per French, Branson and Stone JJ.

33    Such is the approach to be adopted when determining the validity of reg 2.43(1)(p)(ii) and/or Item 1305(3)(g).

THE VALIDITY OF the REGULATIONs

34    Although Counsel for Mr Cheryala’s argument placed considerable emphasis upon the invalidity of reg 2.43(1)(p)(ii) as the principal reason for vitiating the determination that his further bridging visa application was invalid, the fate of any such argument must necessarily depend upon both:

    the facts presented; and

    the application to those facts of the relevant statutory and regulatory provisions.

35    Notwithstanding the accepted need to consider each of the relevant statutory and regulatory provision as they applied to the facts, the starting point for Mr Cheryala’s argument remained reg 2.43(1)(p)(ii). That argument was understood to have at least two strands to it, namely:

    an argument which sought to lay emphasis upon the width of the conduct that could potentially fall within reg 2.43(1)(p)(ii); and

    an argument which sought to place reliance upon an inconsistency – or at least a “tension” – between the consequences of falling within reg 2.43(1)(p)(ii) and the common law presumption of innocence and the common law protection of the liberty of the subject.

36    In resolving these two limbs of the argument, it has been concluded that:

    the terms of reg 2.43(1)(p)(ii) do indeed have a width of application embracing within its terms a great diversity of conduct of varying degrees of seriousness; and that

    the fact that a person has been “charged with an offence” within the meaning of reg 2.43(1)(p)(ii) potentially exposes such a person to very real and serious adverse consequences.

It has nevertheless been further concluded that such adverse consequences to which a person may be exposed by reason of having been “charged with an offence”:

    do not render the regulation “disproportionate” to the enabling legislation; and

    do not infringe any common law presumption of innocence nor of itself affect the liberty of such a person.

It has been concluded that the appeal should be dismissed. The arguments advanced on appeal by Counsel on behalf of Mr Cheryala, it is respectfully concluded, should be rejected because:

    the reliance upon reg 2.43(1)(p)(ii) as the principal focus of invalidity is misplaced – the regulatory provision which precluded Mr Cheryala from making a “valid application” (Migration Act s 65) was not reg 2.43(1)(p)(ii) but rather Item 1305(3)(g); and that

    Item 1305(3)(g) and its recourse to the identification of the conduct embraced by reg  2.43(1)(p)(ii) is not a disproportionate exercise of the power conferred by s 504 to make regulations.

Each of these steps in reaching the conclusion should be briefly addressed.

The width of conduct that potentially constitutes an offence

37    Those textual features of reg 2.43(1)(p)(ii) and/or Item 1305(3)(g) relied upon by Counsel on behalf of the Appellant in the present proceeding to bring that Regulation and/or Item within the description of a regulation “so lacking in reasonable proportionality as not to be a real exercise of the power” (cf. Tanner (1989) 166 CLR 161 at 168 per Wilson, Dawson, Toohey and Gaudron JJ) were the following:

    the fact that the regulation was expressed in terms of a person being “charged” with an “offence”;

    the fact that the “offence” the subject of a “charge” extended beyond “an offence against a law of the Commonwealth, a State, a Territory” and extended to “an offence against a law of … another country”;

    the fact that the “charge” in respect to the “offence” was not limited to any period of time and could relate to a “charge” of some antiquity; and

    the fact that the “offence” the subject of the “charge” could be minor or trivial.

For the purposes of construing the proper scope and operation of reg 2.43(1)(p)(ii), content necessarily has to be given to both the term “charged” and the term “offence”. Neither term was defined by either the Migration Act or the Migration Regulations. Each term was thus to be understood as bearing their normal and ordinary meaning, those meanings including (at least) the following:

    a “charge” including an “accusation”; and

    an “offence” including a “violation or transgression” of a law.

No submission was advanced that the term “offence” should be confined to a criminal offence or a particular category of criminal offence. It was common ground that the term should be given its normal and ordinary English meaning.

38    The very width of the conduct that could potentially fall within a statutory phrase which is drafted in wide terms was of obvious judicial concern to Weinberg J in Vanstone v Clark. On the facts of that case, Mr Clark had been suspended from his position as a Commissioner of the Aboriginal and Torres Strait Islander Commission. In question was the validity of a clause in a Ministerial Determination which provided for a person to have engaged in “misbehaviour” if “the person is convicted of an offence for which there is a penalty of imprisonment”. Even in respect to a phrase more narrowly confined to a person having been “convicted of an offence”, as opposed to a person being “charged with an offence”, Weinberg J summarily rejected as follows an argument founded upon an assumption or a presumption as to the statutory power being exercised in an appropriate way (at 339):

[152]    Some commentators have suggested that there should be a presumption that delegated legislation, no matter how oppressive it has the potential to be, will be enforced with restraint. There can be no justification for such an approach, either empirically or in principle. A belief that those entrusted with statutory power will always exercise that power in an appropriate way, is ultimately destructive of the rule of law.

In commenting upon the extreme width of the conduct that could fall within the terms of the Ministerial Determination, his Honour observed (at 348):

[183]    I set out below some examples of public order and related offences that carry imprisonment, beyond those noted by the primary judge. These offences do not of themselves seem to me to provide any rational basis for considering the suspension or termination of a person entrusted with the responsibilities of an ATSIC Commissioner. That is not to say that they should be regarded as trivial. At least in their aggravated forms, some of them may be regarded as serious.

His Honour then set forth examples of offences drawn from the Summary Offences Acts 1966 (Vic), the Summary Offences Act 2005 (Qld), the Summary Offences Act 1953 (SA), the Police Offences Act 1935 (Tas) and the Summary Offences Act (NT). His Honour continued (at 349 to 350):

[185]    In truth, there are literally thousands of offences that carry possible terms of imprisonment throughout the Commonwealth, the States and the Territories. These are found in a host of statutes, ranging across almost all areas of human activity. They go beyond public order or nuisance offences. For example, under the Occupational Health and Safety Act 2004 (Vic) imprisonment is available as an option for breaches of ss 32, 76 and 125. Under s 24 of the Crimes Act 1958 (Vic), a person can be imprisoned for negligently doing or omitting to do an act that causes serious injury. Admittedly, the degree of negligence required will be greater than that necessary to establish civil liability, but the test is still wholly objective. Imprisonment is also available throughout all Australian States and Territories for various road traffic offences, some of them obviously of considerable gravity, but others falling well short of that description. At the Commonwealth level, putting to one side the various welfare and health insurance fraud offences, which all involve dishonesty, and tax, corporations and narcotics offences, which again may involve conduct of the utmost gravity, there are many other statutes that create offences for which imprisonment is an option. …

[186]    Some offences that can still be prosecuted and are punishable by imprisonment would generally be regarded as archaic. On Norfolk Island, eg, the traditional offence of vagrancy still exists. A person can be imprisoned for being “idle and disorderly” or a “rogue and vagabond”. The onus of proof rests upon the defendant to satisfy the court of his or her lawful means of support. In Victoria, although the offence of vagrancy has been abolished, offences such as “consorting” are still punishable by imprisonment under the Vagrancy Act 1966 (Vic). So too is being a “reputed cheat” who loiters “in or about any river, canal, navigable stream, dock or basin”. Interestingly, s 19 of the Vagrancy Act bears a heading that indicates that offences of a serious nature are not to be dealt with under that Act.

[187]    As previously indicated, many offences that carry imprisonment do not have, as an essential element, a mental state that connotes moral obloquy.

39    The same exercise need not be repeated in the present appeal. It is sufficient to acknowledge the width of potential conduct that could fall within the terms of the phrase employed in reg 2.43(1)(p)(ii). Indeed, there need in fact be no “conduct” engaged in by a claimant to give rise to a charge being laid. A charge may be entirely misconceived and cases may arise where (for example) a claimant has been charged in relation to conduct pursued by another but which is mistakenly attributed to the claimant.

40    Separately relied upon in the present appeal was the further fact that reg 2.43(1)(p)(ii) could operate not solely by reference to an “offence” against a law of the Commonwealth, a State or an Australian Territory but could extend to “an offence against a law of … another country”. The term “offence” is not confined, either within Australia or overseas, to an offence of any particular character. The term would be wide enough to embrace conduct of a kind which would be no offence at all if engaged in within Australia or even conduct which could amount to a contravention of the terms of an overseas statutory provision but conduct which in Australia could be protected by (for example) the implied Constitutional protection of freedom of political communication: cf. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 559 to 560 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ. The conduct seized upon by an overseas provision which rendered such conduct an “offence” could also extend to the exercise of rights or privileges such as religious freedom.

41    The final feature relied upon, namely that reg 2.43(1)(p)(ii) is not constrained by any time limit gives rise to further concern. As drafted, the regulation applies to any “charge” in respect to an “offence” at any period of time. Without any limitation as to time, the “charge” which could lead to a person’s visa being cancelled could well relate to conduct, either within Australia or overseas, of considerable antiquity.

42    The potential width of conduct which could fall within reg 2.43(1)(p)(ii), it may be noted, stands in stark contrast to the identification of conduct of relevance to other provisions within the Migration Act, including (for example) statutory references to:

    a “substantial criminal record” (e.g., s 501(6)(a)); and

    a person having been “convicted of an offence” in particular circumstances or of a particular kind (e.g., s 501(6)(aa) and (ab)).

The selection of one criteria rather than another as the occasion for an exercise of statutory power has thus been a deliberate choice made by the Commonwealth Legislature, at least in respect to s 501, as to the most apposite criteria of relevance to the particular class of decision under consideration. Subject to the manner in which a criteria is defined and that criteria being proportionate to the object and purpose of the Act and the statutory power pursuant to which the criteria is prescribed, it initially remains a matter for the Commonwealth Legislature to select one or other of the criteria elsewhere employed or, indeed, to prescribe a particular criteria peculiarly apposite to the decision to be made.

43    As has been observed by Keane J in CPCF v Minister for Immigration and Border Protection [2015] HCA 1, (2015) 255 CLR 514 at 647:

[479]    It is well-settled that the power of the Executive Government under the common law to deny entry into Australia of a non-citizen … including by compulsion, is an incident of Australia’s sovereign power as a nation.

The same may equally be said of the power to impose conditions upon the grant of approval to remain in the country or conditions that must be satisfied if a “valid” application for approval is to be made to remain in Australia.

44    Construed in isolation, reg 2.43(1)(p)(ii) unquestionably embraces an extensive category of conduct (or indeed no conduct at all) of varying degrees of seriousness, potentially ranging from the innocuous to the most serious. So much is consistent with what was recognised by Weinberg J in Vanstone v Clark. But that which remains to be resolved is whether the potential width of conduct that could fall within the reach of reg 2.43(1)(p)(ii) renders that Regulation – either on its own terms or in combination with Item 1305(3)(g) – invalid.

Common law protections – the presumption of innocence & liberty

45    As a further but discrete plank in the submissions advanced, Counsel for Mr Cheryala sought to compound the difficulties confronted by the width of the statutory language employed in reg 2.43(1)(p)(ii) with a further difficulty. In addition to contending that the Regulation was a disproportionate exercise of the power conferred by s 504 of the Migration Act by reason of the width of language employed, Counsel for Mr Cheryala sought to further contend that reg 2.43(1)(p)(ii) eroded the common law protections traditionally afforded by the presumption of innocence and the liberty of the subject.

46    Regulation 2.43(1)(p)(ii), it was submitted on behalf of the Respondent Minister, operates not by reference to, and does not purport to determine, the ultimate guilt or innocence of a person but operates solely by reference to the status of a person as a person “charged with an offence”. The person so charged may be later found to be not guilty of the offence. Indeed, the charge could be withdrawn and the prosecution dismissed, as happened in the present proceeding. But, in the meantime, it was submitted on behalf of the Appellant that reg 2.43(1)(p)(ii) operated to expose Mr Cheryala to a significant prejudice which was inconsistent with his presumed innocence and freedom.

47    The selection of the status of a person as a person “charged” would offend, so it was submitted on behalf of Mr Cheryala, the presumption of innocence and would be inconsistent with the presumed liberty of the subject.

48    There can be no doubting that the presumption of innocence and the liberty of the subject are fundamental principles of the common law. In Dalla v Minister for Immigration and Border Protection [2016] FCA 998, (2016) 70 AAR 141 (“Dalla”), Logan J referred to the presumption of innocence and some of the authorities, including the following observations of French CJ in Momcilovic v The Queen [2011] HCA 34, (2011) 245 CLR 1 at 46 to 47:

[43]    The principle of legality has been applied on many occasions by this Court. It is expressed as a presumption that Parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language for which Parliament may be accountable to the electorate. It requires that statutes be construed, where constructional choices are open, to avoid or minimise their encroachments upon rights and freedoms at common law. The range of rights and freedoms covered by the principle has frequently been qualified by the adjective “fundamental”. There are difficulties with that designation. It might be better to discard it altogether in this context. The principle of legality, after all, does not constrain legislative power. Nevertheless, the principle is a powerful one. It protects, within constitutional limits, commonly accepted “rights” and “freedoms”. It applies to the rules of procedural fairness in the exercise of statutory powers. It applies to statutes affecting courts in relation to such matters as procedural fairness and the open court principle, albeit its application in such cases may be subsumed in statutory rules of interpretation which require that, where necessary, a statutory provision be read down so as to bring it within the limits of constitutional power. It has also been suggested that it may be linked to a presumption of consistency between statute law and international law and obligations.

(Footnotes omitted.)

The Chief Justice in Momcilovic continued (at 47):

[44]    The common law “presumption of innocence” in criminal proceedings is an important incident of the liberty of the subject. The principle of legality will afford it such protection, in the interpretation of statutes which may affect it, as the language of the statute will allow. A statute, which on one construction would encroach upon the presumption of innocence, is to be construed, if an alternative construction be available, so as to avoid or mitigate that encroachment. On that basis, a statute which could be construed as imposing either a legal burden or an evidential burden upon an accused person in criminal proceedings will ordinarily be construed as imposing the evidential burden.

In Dalla, Logan J went on to say (at 150):

[27]    In Woolmington v Director of Public Prosecutions (1935) AC 462 at 481, Viscount Sankey LC famously observed of the principle that it is for the prosecution to prove the guilt of the accused that it was “the golden thread” of English criminal law. That golden thread still extends to Australia: see, for example, Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 501 per Mason CJ and Toohey J where it is there described as a “fundamental principle of the common law” and at 527 per Deane, Dawson and Gaudron JJ, adopting the descriptions of it by Gibbs CJ in Sorby v The Commonwealth (1983) 152 CLR 281 at 309 as a “cardinal principle of our system of justice”.

On the facts presented in Dalla, Mr Dalla’s Temporary Work (Skilled) visa had been cancelled. The central issue to be there resolved was whether it was necessary for there to be a finding of a breach of the law rather than a mere charge for reg 2.41 to be enlivened. In the course of resolving that issue and setting aside a decision of the Administrative Appeals Tribunal affirming the delegate’s decision, Logan J concluded that the fact that Mr Dalla had been charged gave rise to an “impermissible inference” that “intruded in the decision-making process” and in so doing had denied to Mr Dalla the presumption of innocence: [2016] FCA 998 at [32], (2016) 70 AAR at 151. His Honour also observed that there “are circumstances in migration law and reg 2.43(1)(p) offers one, where the mere fact of being charge can have an adverse consequence”: [2016] FCA 998 at [28], (2016) 70 AAR at 151.

49    Less concern may, perhaps, be experienced where the “offence” with which a person has been charged is in respect to a serious offence recognised as such in Australian law. But greater concern is experienced when it is recognised that the “offence” may be for a relatively minor “offence” or an “offence” not even recognised as such in Australian law. Where the line is to be drawn between “serious” and “less serious” offences may ultimately be an irrelevant exercise to pursue by reason of the fact that it is the existence of a person being charged with an “offence”, however characterised, which exposes the person to adverse consequences in Australia. But the fact that such adverse consequences can arise irrespective of the nature of the “offence” with which a person has been charged is a legitimate reason to pause before concluding that the presumption of innocence does not occasion the invalidity of the Regulation.

50    But reg 2.43(1)(p)(ii), it is ultimately considered, says nothing as to the guilt or innocence of the person charged. Even assuming that reg 2.43(1)(p)(ii) was the provision which precluded the success of an application for a further bridging visa, the fact that a visa applicant has been “charged” with an “offence” – and who has therefore had an application for a visa rejected – is not thereby presumed to be guilty of that “offence”.

51    “Unfocused invocation” of the “principle of legality” and the presumption of statutory construction that a statutory provision does not encroach upon fundamental rights, it must constantly be recalled, “can only weaken its normative force, decrease the predictability of its application, and ultimately call into question its democratic legitimacy”: Independent Commission Against Corruption v Cunneen [2015] HCA 14 at [88], (2015) 256 CLR 1 at 35 to 36 per Gageler J (diss). See also: BGM16 v Minister for Immigration and Border Protection [2017] FCAFC 72 at [54] to [56], (2017) 155 ALD 450 at 460 per Mortimer and Wigney JJ.

52    The fact that a visa holder has been “charged” with an “offence”, albeit saying nothing as to guilt or innocence, nevertheless has serious adverse consequences. A visa may indeed be cancelled by the Minister (s 116(1)(g)) well in advance of a claimant’s ultimate guilt or innocence having been determined by a court. So, too, may adverse action be found in such a person being detained in immigration detention prior to guilt or innocence being determined by a court. Indeed, s 189 of the Migration Act requires an officer to cause an unlawful non-citizen to be detained.

53    But such serious consequences as may otherwise flow from the fact that a person has been “charged with an offence” may, in practice, be somewhat alleviated or mitigated by reason of:

    the fact that a person having been charged with an offence does not necessarily lead to the consequence that a visa will necessarily be cancelled – s 116(1)(g) (as with the other bases specified in s 116(1)) expressly providing that “the Minister may cancel a visa”;

    the fact that a person whose visa may be cancelled pursuant to s 116 is entitled to some degree of procedural protection, including the right to be notified of any proposal to cancel the visa and an opportunity to respond (ss 118A to 127); and

    the ability to seek review by the Administrative Appeals Tribunal in the case of a decision being made by a delegate (s 348) and judicial review in the case of a decision by the Minister (s 476).

54    It should nevertheless be noted that it is not the refusal of such a visa application which leads to a visa applicant necessarily being detained. Although a non-citizen who does not possess a visa may be subject to detention, reg 2.25 of the Migration Regulations provides that the Minister may grant a visa to a non-citizen “[d]espite anything in Schedule 1” if the Minister is satisfied of those matters set forth in reg 2.25(2).

55    Whether reg 2.43(1)(p)(ii) and/or Item 1305 be construed by reference to the very width of conduct that potentially falls within their terms or by reference to the potential for very real and serious adverse consequences flowing from the fact that a person has “been charged with an offence”, those provisions are not a “disproportionate” exercise of the regulation making power conferred by s 504. There remains, it is respectfully concluded, “a reasonable connexion” between those provisions and s 504: cf. Nationwide News.

Charge v cancellation & means of review

56    If the necessity arose to determine the validity of reg 2.43(1)(p)(ii) according to its own terms and in isolation, that question would fall to be resolved by reference to the fact that that Regulation:

    employs language which has the potential to embrace within its terms conduct (or indeed no conduct) of a potentially diverse character; and

    has the potential to expose a claimant to significant adverse action being taken, namely the cancellation of a visa.

But the emphasis placed by Counsel on behalf of Mr Cheryala upon the validity of reg 2.43(1)(p)(ii) was misplaced.

57    Mr Cheryala’s visa application was rejected not by reference to reg 2.43(1)(p)(ii) alone.

58    Mr Cheryala’s application was rejected because it was not a “valid application” (s 65(1)) because a “criteria” prescribed by regulation (s 46(3)) included the need to satisfy those “matters” set out in Sch 1 of the Migration Regulations (reg 2.07(1)(c)), including Item 1305(3)(g). It was Item 1305(3)(g) which imposed the “matter” which rendered Mr Cheryala’s application “invalid”. And Item 1305(3)(g) operated not simply because Mr Cheryala had “been charged with an offence” (reg 2.43(1)(p)(ii)) but because a visa that he had previously held had been “cancelled on a ground specified in paragraph 2.43(1)(p)”.

59    That which precluded Mr Cheryala from being able to make a “valid application”, accordingly, was not his status as a person who had been “charged with an offence” (reg 2.43(1)(p)(ii)) but his status as a person who had “previously held a visa that [had] been cancelled on a ground specified in paragraph 2.43(1)(p)” (Item 1305(3)(g)). Even the alternative declaratory relief sought on behalf of Mr Cheryala as to the invalidity of Item 1305(3)(g) because it is a disproportionate exercise of legislative power failed to address the protections afforded by:

    the need for there to be a lawful exercise of the discretion conferred upon the Minister pursuant to s 116(1)(g) as to whether conduct could lawfully found a decision to cancel the visa; and

    the ability to seek review of the Minister’s decision, both before the Tribunal and the Federal Circuit Court.

Although the facts and circumstances of any particular case would necessarily dictate any decision reached, it could well be the case that the more innocuous and trivial the conduct which has led to a visa applicant being charged with an offence the more unlikely it would be the case that the Minister could lawfully make a decision to cancel a visa. In the case of an adverse decision made by a delegate of the Minister (rather than the Minister personally), there would remain the prospect of seeking review on the merits before the Tribunal of such a decision. Either way, an applicant for a bridging visa is not precluded from making a valid application for such a visa by reason of his having been charged with an offence but rather by reason of a reviewable decision being made to cancel the visa.

CONCLUSIONS

60    It is concluded that the relief sought by Mr Cheryala on appeal should be refused.

61    The Federal Circuit Court Judge was correct to reject the Application that was before that Court.

62    Neither reg 2.43(1)(p)(ii) nor Item 1305(3)(g) of Sch 1 of the Migration Regulations are beyond power. Neither is a disproportionate exercise of the power conferred by s 504 of the Migration Act to make Regulations consistent with the object of that Act.

63    On one view of the facts, it may perhaps be perceived that the facts have fallen in an unhappy sequence such as to occasion unfairness to Mr Cheryala. On that view of the facts, had Mr Cheryala exercised his right to seek review of the cancellation decision made on 22 June 2017, that application for review would in all probability not have been heard and resolved prior to the criminal charges being withdrawn on 9 August 2017. Indeed, the complainant (for whatever reason) had provided a witness statement dated 18 June 2017 indicating that she did “not wish to supply a formal statement or written version of events in relation to the incident” allegedly involving Mr Cheryala. It was unknown when Mr Cheryala became aware of the making of this statement. But the fate of any such application for review, had it been made, remains of course a matter of speculation.

64    But such was not the course pursued by Mr Cheryala. He opted for making the further application for a bridging visa. There was no evidence as to why he pursued that course rather than seeking review.

65    But any such potential unfairness that may have been occasioned to Mr Cheryala as a consequence of the decision he made to again seek a bridging visa cannot dictate any contrary conclusion.

66    It follows that the appeal should thus be dismissed.

67    In such circumstances, the Minister’s Notice of Contention need not be resolved.

68    There is no reason why costs should not follow the event. The Appellant should pay the costs of the Respondent Minister.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the Respondent.

Associate:

Dated:    23 March 2018