FEDERAL COURT OF AUSTRALIA

Newall v Minister for Immigration and Multicultural Affairs [1999] FCA 1624

MIGRATION – Migration Act 1958 (Cth) – decision by delegate of Minister not to revoke cancellation of visa – whether proper consideration given by delegate to issue of risk to health, safety or good order of Australian community

Migration Act 1958 (Cth) ss 65(1), 116(1), 128, 129(1), 131, 132, 476

Tien v Minister for Immigration and Multicultural Affairs (1998) 159 ALR 405, followed

Bank of Western Australia v Federal Commissioner of Taxation (1994) 125 ALR 605, followed

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577, followed

Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719, applied

MARK STEPHEN NELSON NEWALL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 11 of 1999

BRANSON J

SYDNEY

24 NOVEMBER 1999

THE COURT ORDERS THAT:

1.                  The decision of the delegate of the Minister for Immigration and Multicultural Affairs be affirmed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

INTRODUCTION

1                     This is an application under s 476 of the Migration Act 1958 (Cth) (“the Act”) for review by the Court of a decision made by a delegate of the respondent not to revoke the cancellation of the applicant’s Electronic Travel Authority (Visitor) visa.

FACTS

2                     The applicant was granted an Electronic Travel Authority (Visitor) visa on 12 May 1998.  The visa was valid for a period of twelve months and authorised the applicant to stay in Australia for a period of three months.  The applicant applied for the visa to enable him to make a short visit to Australia to meet the parents of his girlfriend who live in Queensland.

3                     By letter dated 13 May 1998, the applicant wrote to the Australian High Commission in London.  He expressed his concern that during the process leading to the granting of his visa no questions were asked as to his status.  He advised that he had been arrested and convicted in the United Kingdom for an offence committed in October 1987 and had consequently served three years in prison from 1993 until 1996.  The applicant sought confirmation that he would be allowed to enter Australia.

4                     By letter dated 1 July 1998 the applicant was advised by a Senior Migration Officer at the Australian High Commission that his visa had been cancelled under s 128 of the Act “because it is considered that your presence in Australia would be a risk to the safety or good order of the Australian community – reference Section 116(1)(e) of the Migration Act 1958.”  By the same letter the applicant was advised of his entitlement under the Act to apply to have the cancellation of his visa revoked.

5                     The applicant made submissions by a solicitor in an endeavour to have the cancellation of his visa revoked.  He provided nine references/testimonials as to his character, including one from the Governor of the prison in which he served his sentence and others from business colleagues and personal friends.

6                     By letter dated 17 December 1998 from a Senior Migration Officer at the Australian High Commission the applicant was advised:

“After considering your response, the Department has decided not to revoke the cancellation of your visa under section 131 of the Act.  Although you have has (sic) been convicted on only one occasion in August 1994 the two offences of two counts of assisting after a murder were very serious and you were sentenced to 6 years imprisonment on each count, the second to run concurrently.  I understand the offences were committed in 1987, you were extradited from France in 1993 to face the above charges and were released from prison on parole in 1996.  I have taken into account the unusual circumstances of the offence, references from the governor of the prison and the prison education officer concerning your conduct in prison, the decision of the parole board and 6 references from former colleagues and friends and the fact that you stated a wish to visit the family of your girlfriend in Australia.  However, in all the circumstances including the seriousness of your convictions and the fact that you were only released on parole two years ago I am satisfied that there was a ground for cancellation ie the ground in section 116(1)(e) that the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community and I do not find that there is a reason to revoke the cancellation.”

7                     It is not in dispute that the offences of which the applicant was convicted arose in the following circumstances.  When twenty-one years of age, the applicant arrived at his parents’ home to find them both dead and his brother holding a shotgun to his head threatening to kill himself.  The applicant did not contact the police but apparently assisted his brother to avoid arrest.

LEGISLATION

8                     Section 65(1) of the Act requires the Minister to grant a visa if, after considering a valid application for the visa, he or she is satisfied of the matters specified in the subsection.

9                     Section 116 of the Act is concerned with cancellation of visas.  It provides:

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

(a)               any circumstances which permitted the grant of the visa no longer exist; or

(b)               its holder has not complied with a condition of the visa; or

(c)                another person required to comply with a condition of the visa has not complied with that condition; or

(d)               if its holder has not entered Australia or has so entered but has not been immigration cleared – it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or

(e)                the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community; or

(f)                 the visa should not have been granted because the application for it, or its grant was in contravention of this Act or of another law of the Commonwealth; or

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

(2)               The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.

(3)        If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

10                  The applicant’s visa was cancelled pursuant to s 128 of the Act which provides:

“If:

(a)               the Minister is satisfied that:

(i)         there is a ground for cancelling a visa under section 116; and

(ii)               it is appropriate to cancel in accordance with this Subdivision; and

(b)        the non-citizen has not entered Australia;

the Minister may, without notice to the holder of the visa, cancel the visa.

11                  Upon the cancellation of the applicant’s visa, the Minister came under an obligation under s 129(1) of the Act to give the applicant a notice:

“(a)       stating the ground on which it was cancelled; and

(b)               giving particulars of that ground and of the information (not being non-disclosable information) because of which the ground was considered to exist; and

(c)               inviting the former holder to show, within a specified time, being a prescribed time, that:

(i)         that ground does not exist; or

(ii)        there is a reason why the visa should not have been cancelled; and

(d)               stating that, if the former holder shows, within the specified time, that the ground does not exist, the cancellation will be revoked; and

(e)               stating that, if the former holder shows that there is a reason why the visa should not have been cancelled, the cancellation might be revoked.”

12                  Sections 131 and 132 of the Act provide:

“131(1)           Subject to subsection (2), after considering any response to a notice under section 129 of the cancellation of a visa, the Minister:

(a)         if not satisfied that there was a ground for the cancellation; or

(b)         if satisfied that there is another reason why the cancellation should be revoked;

is to revoke the cancellation.

(2)                     The Minister is not to revoke the cancellation of a visa if there exist prescribed circumstances in which the visa must be cancelled.

132      When, under section 131, the Minister revokes or does not revoke the cancellation of a visa, he or she is to notify the visa holder or former visa holder of the decision in the prescribed way.”

13                  There is no obligation on the Minister, or his or her delegate to give reasons for a decision made under s 131 of the Act.  Under s 132 the only obligation is to notify the visa holder or former visa holder of the decision in writing (regulation 2.49 of the Migration Regulations 1994).

CONSIDERATION

14                  The applicant’s primary contention is that the delegate of the respondent who made the decision not to revoke the cancellation of the applicant’s visa failed to consider the real question that it was her duty to consider, namely, whether the ground for cancellation provided for by s 116(1)(e) of the Act existed.  As I understand this contention, it involves the submission that the delegate must have either acted on an erroneous interpretation of        s 116(1)(e) of the Act or, alternatively, have incorrectly applied that paragraph to the facts as found by her.

15                  Consideration of this matter is complicated by the failure of each of the applicant’s solicitor and the delegate of the respondent who made the decision not to revoke the cancellation of the applicant’s visa, to refer to the two separate circumstances in which s 131 authorises the revocation of the cancellation of a visa (see also s 129(1)(c)-(e)).  The section authorises the revocation of the cancellation first, where the Minister is not satisfied that there was a ground for the cancellation, and secondly, where the Minister is satisfied that there is another reason why the cancellation should be revoked.  That is, in effect, the section authorises revocation where the ground initially relied upon to support the revocation is successfully challenged by the former visa holder or where additional information is provided to the Minister which satisfies him or her that it was not appropriate to act on such ground.

16                  The notice of cancellation provided to the applicant as required by s 129 of the Act states that the applicant’s visa was cancelled on the ground that:

“… it is considered that your presence in Australia would be a risk to the safety or good order of the Australian community – reference Section 116(1)(e) of the Migration Act 1958.”

17                  The only “particulars of that ground and of the information … because of which the ground was considered to exist” given were:

“The Department of Immigration and Multicultural Affairs … has written advice that you were convicted and sentenced to a period of six years imprisonment on 8 August 1994 on two counts of being an accessory after the fact to murder, both sentences to be served concurrently.

When you applied for the Electronic Travel Authority granted to you on 12 May 1998 full details concerning your previous record of criminal conduct were not known to the issuing officer.  Had your previous criminal antecedents (sic) been fully disclosed at the time of your application for an ETA, you would have been referred for further consideration and you may not have been granted a visa at the time.”

18                  Although it is not a matter which I am required to determine on the present application, I am inclined to doubt that the above “particulars” satisfy the requirement of       s 129(1)(b) of the Act.  They do not, as it seems to me, explain to the applicant why the fact of his conviction and sentence on 8 August 1994 satisfied the Minister’s delegate that his presence in Australia would be a risk to the safety and good order of the Australian community.  That is, they do not make it clear whether the Minister’s delegate was satisfied that the mere presence in Australia of a person with his criminal record would be a risk to the safety or good order of the Australian community or whether the Minister’s delegate was satisfied that his presence in Australia would create a risk that he would engage in conduct in Australia that would place at risk the safety or good order of the Australian community.

19                  However, the decision which the Court is asked to review is not the decision made under s 128 of the Act to cancel the visa, but the decision made under s 131 of the Act not to revoke the cancellation of the visa.

20                  The parties before me were in agreement that s 131 provides for a de novo consideration of both whether there is a ground for cancellation of the visa (cf s 128(a)(i)) and whether it is appropriate for the visa to be cancelled (cf s 128(a)(ii)).  It may be noted that the letter of 17 December 1998 by which the applicant was notified of the decision not to revoke the cancellation of his visa although brief, does indicate that the decision maker in this instance did appreciate that she was required to engage in a two stage reasoning process.  That is, to determine first whether she was satisfied that there was a ground for the cancellation and, if she was so satisfied, to determine whether she was satisfied that there was a reason why the cancellation should nonetheless be revoked.

21                  It may be accepted that the terms “health” and “safety” are used in s 116(1)(e) of the Act in their respective ordinary meanings.  Goldberg J gave consideration to the proper interpretation of the expression “good order of the Australian community” in s 116(1)(e) of the Act in Tien v Minister for Immigration and Multicultural Affairs (1998) 159 ALR 405 at 418-419 where his Honour said:

“The expression ‘good order of the Australian community’ is not defined in the Act.  I was not referred to any judicial considerations of this particular expression.  It must be construed in the context in which it appears, that is, juxtaposed to the words ‘the health, safety’ of the Australian community.  In that context it has, in my opinion, a public order element, that is to say, it requires there to be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law in Australia or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.  It involves something in the nature of unsettling public actions or activities.  For example, a person who came to Australia and was found to be committing in Australia serious breaches of the law or criminal acts or was inciting people in the community to violence could properly be said to be a person whose presence in Australia is a risk to the good order of the Australian community.

… the expression ‘good order of the Australian community’ requires a consideration of issues similar to those which arise on a consideration of the expression ‘public order’.  That is to say, one is concerned with activities which have an impact on public activities or which manifest themselves in a public way.”

22                  It is appropriate for me to adopt the same construction of the expression “good order of the Australian community” in s 116(1)(e) of the Act as Goldberg J unless I am satisfied that his Honour was clearly wrong (see Bank of Western Australia v Federal Commissioner of Taxation (1994) 125 ALR 605 at 627 and the authorities there cited).  I am not so satisfied.

23                  It was submitted on behalf of the applicant that “[t]he delegate failed to address the correct question by looking only to the fact of the applicant’s past conviction and sentence rather than to the risks that would be presented by the applicant’s presence in Australia.”  This submission I understand to be directed to the satisfaction of the delegate that there was a ground for cancelling the applicant’s visa under s 116 of the Act.

24                  By her letter of 17 December 1998, the delegate expresses her satisfaction “that the presence of [the visa] holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community.”  These words suggest that the delegate did not make the error which the applicant attributes to her (see s 116(1)(e)).

25                  However, the applicant criticises the delegate’s “formulaic recitation of the statutory language” of s 116(1)(e) and draws attention to the absence of any further explanation being offered for the decision and “the absence of any obviously rational basis for the conclusion that such a risk existed.”  In considering the force of these criticisms, it is of significance that the delegate was under no statutory obligation to provide reasons for her decision.

26                  In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 at para 40 Gleeson CJ and McHugh J observed:

“Someone who disagrees strongly with someone else’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as ‘illogical’ or ‘unreasonable’, or even ‘so unreasonable that no reasonable person could adopt it’.  If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.”

27                  Gummow J made the same point in Eshetu at para 134 where he noted, with approval, in the context of his Honour’s  consideration of “satisfaction” as a basis of jurisdiction, that in Foley v Padley (1984) 154 CLR 349 at 370 Brennan J had emphasised:

“that the question for a court is not whether it would have formed the opinion in question but whether the repository of the power could have formed the opinion reasonably and that an allegation of unreasonableness in the formation of that opinion may often prove to be no more than an impermissible attack upon the merits of the decision then made in purported exercise of the power.”

28                  The true position was, it seems to me, correctly summarised by Kenny J in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 at para 146 as follows:

“A tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning.”

29                  Her Honour went on to express her agreement with the remarks made by Katz J in Zuway v Minister for Immigration and Ethnic Affairs 160 ALR 391 “that a search by the Court for objective cogency in the reasons of the RRT creates a risk that the Court will substitute its own view of the merits of the case for that of the Tribunal.”

30                  In my view, the applicant in this case does, in reality, invite the Court to substitute its view for that of the delegate of the Minister on the question of whether there was a ground for the cancellation of the applicant’s visa.  I am not persuaded that it was not open to the delegate to be satisfied that the presence in Australia of a person who has relatively recently been convicted of being an accessory after the fact to the murder of his parents would be a risk to the “health, safety or good order of the Australian community” within the meaning of s 116(1)(e) of the Act.  In particular, it seems to me, it was open to the delegate to be satisfied, having regard to the seriousness of the offences committed by the applicant, and the fact that he was, as it seems, still on parole licence in respect of such offences in December 1998, that the presence of the applicant in Australia as an authorised visitor might “create difficulties … in relation to the values, balance and equilibrium of Australian society” (per Goldberg J in Tien at p 419).  Such satisfaction might be based on the risk of an adverse reaction by certain members of the Australian society to his presence in this country in the circumstances referred to above, rather than on concern about the likely or possible conduct of the applicant in Australia.

31                  My above finding renders untenable the other grounds upon which the applicant seeks review of the decision of the Minister’s delegate.

32                  The decision of the delegate of the Minister not to revoke the cancellation of the applicant’s Electronic Travel Authority (Visitor) visa is affirmed.

Associate:

Dated:                                          24 November 1999