FEDERAL COURT OF AUSTRALIA

Gunner v Minister for Immigration & Multicultural Affairs [2000] FCA 200

IMMIGRATION – whether Minister has power to revoke certificate issued under s 502(1) of the Migration Act 1958 (Cth) declaring applicant to be an excluded person.

Acts Interpretation Act 1901 (Cth), s 33(3)

Judiciary Act 1903 (Cth), s 39B(1A)

Migration Act 1958 (Cth), ss 500, 501, 502

Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 cited

Tuli v Minister for Immigration and Multicultural Affairs [1999] FCA 271 cited

PAUL WILLIAM GUNNER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1294 of 1999

SACKVILLE J

3 MARCH 2000

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed, with costs.

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

REASONS FOR JUDGMENT

1                     This application raises a short point of statutory construction.  The applicant contends that the respondent (“the Minister”) has power to revoke a certificate issued on 10 June 1997 under s 502(1) of the Migration Act 1958 (Cth) (“Migration Act”), declaring the applicant to be an excluded person.  The effect of the certificate was to prevent the applicant applying to the Administrative Appeals Tribunal (“AAT”) for review of the Minister’s decision, also made on 10 June 1997, to cancel the applicant’s permanent residence visa.  The Minister says he has no power to revoke the certificate and thus is neither obliged nor entitled to act on the applicant’s request that he should do so.

Legislation

2                     Sections 501 and 502 of the Migration Act were amended by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth) (“Migration Amendment Act 1998”).  Although some reference was made to the Migration Act as amended, the question of construction concerns ss 501 and 502 in their unamended form.  Mr Lloyd, who appeared for the applicant, conceded that if there was no power to revoke the certificate under the legislation in its unamended form, the applicant cannot succeed.  Accordingly, the provisions set out below reflect the form of the legislation prior to the date the Migration Amendment Act 1998 came into force.

3                     Sections 500-502 of the Migration Act, as in force at the time of the Minister’s decision to issue the certificate, were as follows:

“500(1)           Applications may be made to the Administrative Appeals Tribunal for review of:

(a)               …

(b)               decisions of the Minister under section 501; or

(c)               …

other than decisions to which a certificate under section 502 applies.

…

501(1)             The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if:

(a)               subsection (2) applies to the person; or

(b)               …

(2)   This subsection applies to a person if the Minister:

(a)               having regard to:

(i)                 the person’s past criminal conduct; or

(ii)               the person’s general conduct;

is satisfied that the person is not of good character; or

(b)               …

(3)       The power under this section to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person.

…

502(1)             If:

(a)               the Minister, acting personally, intends to make a decision:

(i)                 …; or

(ii)               under section 501; or

(iii)             …;

in relation to a person; and

(b)               the Minister decides that, because of the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person.

the Minister may, as part of the decision, include a certificate declaring the person to be an excluded person.

(2)               A decision under subsection (1) must be taken by the Minister personally.

(3)               If the Minister makes a decision under subsection (1), the Minister must cause notice of the making of the decision to be laid before each House of Parliament within 15 sitting days of that House after the day on which the decision was made.”  (Emphasis supplied.)

4                     There is no express power in s 502 of the Migration Act to revoke a decision to declare a person to be an excluded person.  Mr Lloyd, who appeared on behalf of the applicant, submitted that such a power was either to be implied from the language of s 502 itself or by reason of s 33(3) of the Acts Interpretation Act 1901 (Cth) (“Interpretation Act”).  Section 33(3) provides as follows:

“33(3)Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.”

The Facts

5                     The facts pertinent to this application appear in the judgment of the Full Court in Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 (a case involving the present applicant) and in an affidavit read on the applicant’s behalf at the hearing.

6                     The applicant is a British citizen.  He was granted permanent residence in Australia in 1992.  He has an extensive criminal record in this country.  In March 1996, a delegate of the Minister made a deportation order against the applicant under ss 200 and 201 of the Migration Act.  In April 1997, the Administrative Appeals Tribunal (“AAT”) set aside the delegate’s decision.

7                     On 10 June 1997, the Minister, acting personally pursuant to s 501 of the Migration Act, signed a minute stating that he was satisfied that the applicant was not a person of good character.  The Minister cancelled the applicant’s permanent visa and on the same day signed a certificate in the following form:

“I, Philip Ruddock, Minister of State for Immigration and Multicultural

            Affairs, having decided that, because of the seriousness of the circumstances giving rise to my decision to cancel the permanent visa of Paul William GUNNER, it is in the national interest that Paul William GUNNER be declared an excluded person

do hereby so declare Paul William GUNNER to be an excluded person in accordance with subsection 502(1) of the Migration Act 1958.

Dated this 10^th day of June 1997

[Sgd]

Philip Ruddock

Minister of State for

Immigration and Multicultural Affairs”

8                     In Minister v Gunner, the applicant challenged the Minister’s decision to cancel the visa and to issue a certificate.  He succeeded at first instance, but the Minister’s appeal was allowed.  The Full Court held that the Minister’s powers under ss 501 and 502 of the Migration Act were not affected by the prior determination of the AAT setting aside the delegate’s decision to make a deportation order against the applicant.

9                     On 18 July 1999, the applicant’s solicitor wrote to the Minister requesting the Minister to revoke the certificate issued on 10 June 1997.  No request was made to the Minister to revoke the decision to cancel the applicant’s visa.  The letter contended that the power to revoke the certificate arose from s 33(3) of the Interpretation Act.  The request was based on what was said to have been the applicant’s exemplary conduct while in custody and on work release since 10 June 1997.  The request also argued that it was in the best interests of the applicant’s child that the applicant should be allowed to remain in Australia.

10                  The Minister replied on 19 October 1999, stating that he had received advice that ss 501 and 502 evinced a contrary intention for the purposes of s 33(3) of the Interpretation Act and that therefore the sub-section did not apply.  The letter did not explain the basis of the advice received by the Minister.

The Relief Sought

11                  The further amended application states that the applicant seeks review of the Minister’s decision “to refuse to reconsider his decision of 10 June 1997 to declare the applicant an ‘excluded person’ under the Migration Act s 502”.  The only relief sought, however, is a declaration in the following form:

“2.       A declaration that the respondent erred in concluding that he lacks power to revoke certificates issued under s502, in particular, the certificate made in respect of the Applicant.”

12                  Mr Johnson, who appeared on behalf of the Minister, accepted that the Court has jurisdiction under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) to decide whether or not the Minister has an implied power under s 502(1) of the Migration Act and s 33(3) of the Interpretation Act to revoke the certificate.  He therefore accepted that the Court has jurisdiction to make the declaration sought by the applicant, should the applicant’s argument be correct.

Reasoning

13                  It is important to appreciate that the applicant has not requested the Minister to revoke the instrument by which the Minister cancelled the applicant’s permanent visa.  The declaratory relief sought by the applicant relates only to the Minister’s alleged power to revoke certificates issued under s 502, in particular the certificate issued in respect of the applicant.  It is clear from the course of argument that the applicant wishes to challenge the Minister’s refusal to consider revoking the certificate issued on 10 June 1997.  The applicant’s contention is that the Minister has power to revoke that certificate independently of the exercise of any power the Minister may have to revoke the instrument cancelling the applicant’s visa.

14                  Mr Lloyd explained that the applicant has taken this course because he considers it unlikely that the Minister will be prepared to revoke the instrument cancelling the applicant’s visa.  The applicant apparently takes the view that the AAT is more likely to be sympathetic to his contention that he should not now be regarded as a person “not of good character” within the meaning of  s 501(2) of the Migration Act.  Mr Lloyd did not explain why it is thought that the Minister is more likely to revoke the certificate issued under s 502(1) than to revoke the instrument cancelling the applicant's visa.

15                  Section 502(1) applies if the Minister:

·        acting personally;

·        intends to make a decision (relevantly) under s 501 in relation to a person; and

·        decides that because of the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person.

If the three criteria are satisfied, the Minister may, as part of the decision, include a certificate declaring the person to be an excluded person.

16                  The Full Court in Minister v Gunner (at 409) observed that:

“[t]he 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.”

An element of the statutory scheme designed to achieve this result that the Minister’s decision to issue a certificate declaring the person to be an excluded person is part of the decision made under s 501 (in this case the decision to cancel the applicant’s visa on the ground that the Minister was satisfied that the applicant was not of good character).  As Carr J said in Tuli v Minister for Immigration and Multicultural Affairs [1999] FCA 271, at [16]:

“[t]here can scarcely be a closer relationship between something (in this case each of the decisions, respectively, to cancel and refuse a visa) and another thing (the inclusion of a certificate declaring the applicant to be an excluded person) which is part of that first-mentioned thing”.

17                  It follows that a decision to issue a certificate under s 502 can therefore be made only by the Minister acting personally and only as part of a decision to refuse or cancel a visa on one of the grounds specified in s 501.  The Minister has no free-standing power to issue a certificate denying a person a right otherwise available to a person to apply to the AAT for review of an adverse decision.

18                  In my opinion, the major difficulty in the applicant’s path is that, since s 502(1) does not confer a power to issue a certificate otherwise than as part of a decision (relevantly) to cancel a visa under s 501, it is difficult to see how there can be an implied power to revoke the certificate otherwise than as part of a decision to revoke the cancellation of the visa.  Section 33(3) of the Interpretation Act, in effect, implies a power to revoke an instrument issued under an Act, unless a contrary intention appears.  But any implied power of revocation “is exercisable in the like manner and subject to the like conditions (if any)” as the power to make or issue the instrument.  If the power to make the instrument (that is, issue the certificate under s 502(1)) is expressly limited to the case where the instrument is issued as part of a cancellation decision, it can be revoked (if at all) only as part of a decision to revoke the cancellation decision.  Otherwise the implied power to revoke the instrument would not be exercisable in the like manner and subject to the same conditions as the original power to make or issue the instrument.

19                  It is perhaps arguable that s 33(3) of the Interpretation Act supports the proposition that the Minister has an implied power to revoke the issue of a certificate under s 502(1) of the Migration Act, provided the revocation of the certificate is part of a decision by the Minister to revoke the instrument cancelling the visa.  But for that conclusion to be correct, it would be necessary to establish that the Minister has power to revoke the instrument cancelling the visa.  The applicant did not attempt to make out a case that the Minister has such a power.

20                  Mr Lloyd recognised the difficulty facing the applicant’s argument.  Nonetheless, he did not seek to amend the application further or to address the question of whether the Minister has power to revoke the cancellation decision.  Rather, he submitted that s 502 should be regarded as conferring a power on the Minister separate from that conferred by s 501.  But this flies in the face of the explicit statement in s 502 that the certificate can be issued only as part of the decision made personally by the Minister under (in this case) s 501 and that the certificate is included in that decision.  Whether or not there are two decisions (one under s 501 and the other under s 502), it is clear that a certificate can be issued under s 502 only as part of the cancellation decision.  It follows, in my opinion, that revocation of the certificate can only take place (if at all) as part of the revocation of the cancellation decision.

21                  I should add that in Minister v Gunner, the Full Court observed at one point (at 408) that ss 501 and 502 of the Migration Act “are quite separate sources of power”.  Read in context, this observation seems to have been intended as a reference to ss 201 and 501 of the Migration Act, rather than to ss 501 and 502.  If, contrary to my view, the Full Court intended the reference as it appears in the report, the remark was not directed to the unambiguous statement in s 502(1) that a certificate declaring a person to be an excluded person is part of the decision to cancel a visa under s 501.

22                  It will be apparent from what I have said that the crucial question in circumstances such as those raised by the present case is not whether the Minister has power to revoke a certificate, but whether the Minister has power to revoke the instrument cancelling the visa.  Because of the way the case was argued, that issue was not debated before me and I express no view about it.

Conclusion

23                  The applicant has failed to make out a case for a declaration in the terms set out in the amended application.  The application should be dismissed, with costs.

Associate:

Dated:              3 March 2000