FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Perth City Mission

[2000] FCA 397

MIGRATION – exercise of discretion under s 501 Migration Act 1958 (Cth) not to refuse the grant of a visa on the basis of the applicant being a person “not of good character”.

WORDS & PHRASES – “not of good character”.

Administrative Appeals Tribunal Act 1975 (Cth) ss 43, 43(1), 43(1)(c)(ii)

Citizenship Act 1948 (Cth)

Migration Act 1958 (Cth) s 501

Migration Regulations 1994 cll 103.211(a), 103.212(3)(d) (Schedule 2)

Flick Federal Administrative Law 2^nd ed. 1984

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 referred to

Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 referred to

Commonwealth of Australia v Beale (1993) 30 ALD 68 followed

Re SLE Medical Pty Ltd and Industry Research and Development Board (1988) 10 AAR 13 approved

Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 followed

Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 referred to

Ahmed v Minister for Immigration and Multicultural Affairs (1999) 55 ALD 618 referred to

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS v PERTH CITY MISSION AND JOHN DYSON POWELL AND MARISA POWELL

W 31 OF 1999

LEE J

PERTH

31 MARCH 2000

ON APPEAL FROM THE GENERAL DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY A SENIOR MEMBER

THE COURT ORDERS THAT:

The “appeal” be dismissed with costs.

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

ON APPEAL FROM THE GENERAL DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY A SENIOR MEMBER

REASONS FOR JUDGMENT

1                     This is an “appeal” from a decision of the Administrative Appeals Tribunal (“the Tribunal”) in which the Tribunal determined that a decision of a delegate of the applicant (“the Minister”) not to grant visas to the second respondents (“Mr and Mrs Powell”) under the Migration Act 1958  (Cth) (“the Act”) be set aside and the matter remitted to the Minister with a “direction” that “Mr and Mrs Powell not be refused visas on the basis of their bad characters”.

2                     The first respondent is a “community organisation” which sponsored applications by Mr and Mrs Powell for “Subclass 103 – Parent Visas”, a requirement for the grant of such visas set out in cl 103.212(3)(d) of Schedule 2 of the Migration Regulations 1994 (“the Regulations”).

3                     The delegate of the Minister refused the applications for the visa in November 1966.

4                     An application to review the decision of the delegate was made to the Tribunal and the Tribunal affirmed the delegate’s decision in June 1998.

5                     In November 1998, on an “appeal” to this Court from the decision of the Tribunal, orders were made that the decision of the Tribunal be set aside and the matter remitted to the Tribunal for determination according to law.

6                     The Tribunal redetermined the matter in March 1999. The Tribunal found that Mr and Mrs Powell were not persons of “good character” but set aside the decision of the delegate and remitted the matter to the Minister with a “direction” that “Mr and Mrs Powell not be refused visas on the basis of their bad characters”. The Minister now “appeals” from that decision of the Tribunal.

7                     The relevant facts found by the Tribunal may be stated in short form as follows. Mr and Mrs Powell are citizens of Great Britain. Mr Powell is 46 and Mrs Powell is 39. Mr Powell last entered Australia in March 1992 and Mrs Powell in July 1992. They have resided in Australia since those dates. They were married in May 1993. A child of the marriage was born in October 1994. At that time Mr Powell was the holder of a Transitional (Permanent) Visa. Under the provisions of the Citizenship Act 1948 (Cth), the child of the marriage was an Australian citizen from birth. It is accepted that the child is “a settled Australian citizen” for the purpose of cl 103.211(a) of Schedule 2 of the Regulations and therefore that a principal criterion for the grant of a Subclass 103 – Parent Visa has been satisfied.

8                     Mr and Mrs Powell met in the United Kingdom in 1985 or 1986. At that time they were employees of the same employer. Each was married but their respective marriages were destined for dissolution. In February 1987 Mrs Powell’s marriage was dissolved on her petition which alleged violent conduct by her partner in the course of the marriage. Mr Powell’s marriage was dissolved in September 1988.

9                     By February 1989 Mr and Mrs Powell had established a de facto marriage relationship. They visited Australia in the months of February and March 1989. Mrs Powell returned to Australia in November 1989 and Mr Powell arrived one week later. In the course of that visit Mr Powell reached an understanding with a person who held “permanent resident status” - a person Mr and Mrs Powell had met on the earlier visit - that Mr Powell and that person would enter a form of marriage to enable Mr Powell to apply to migrate to Australia to rejoin his “spouse”.

10                  Mrs Powell was aware of, and acquiesced in, the arrangement. Mrs Powell returned to the United Kingdom in January 1990. Mr Powell was “married” in Australia in February 1990. In April 1990 he returned to the United Kingdom, resumed cohabitation with Mrs Powell, and made application to migrate to Australia, the application being supported by the “spouse”. In due course the application was approved and Mr Powell re-entered Australia in August 1991 on a Transitional (Permanent) Visa. In October 1991 he returned to the United Kingdom. In company with Mrs Powell he came back to Australia in March 1992. In May 1992 Mrs Powell returned to the United Kingdom. In June 1992 Mr Powell and his “spouse” made joint application for dissolution of their “marriage”. The “marriage” was dissolved in July 1992 and in the same month Mrs Powell returned to Australia to resume cohabitation with Mr Powell. In December 1992 Mrs Powell applied for a visa as the de facto spouse of Mr Powell. That application caused officers of the Minister’s department to commence enquiries about the activities of Mr and Mrs Powell. In June 1995 the department gave notice of the intention to cancel the Transitional (Permanent) Visa held by Mr Powell. In July 1995 Mr and Mrs Powell applied for the Subclass 103 – Parent Visas.

11                  In June 1996 Mr Powell’s Transitional (Permanent) Visa was cancelled and, as noted earlier, in November 1996 the applications for Subclass 103 – Parent Visas were refused. The applications were refused pursuant to the terms of s 501 of the Act.

12                  At that time s 501 read as follows:

“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)        the Minister is satisfied that, if the person were allowed to enter or to remain in Australia, the person would:

                         (i)       be likely to engage in criminal conduct in Australia; or

                        (ii)       vilify a segment of the Australian community; or

                       (iii)       incite discord in the Australian community or in a segment of that community; or

                        (iv)      represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or violence threatening harm to, that community or segment, or in any other way.

     (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)       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.

     (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.”

13                  It was not submitted that the repeal and substitution of s 501 on 1 June 1999 was relevant to this “appeal”. Submissions were directed to s 501 as it stood before repeal.

14                  At the re-hearing conducted by the Tribunal, the following matters were conceded by Mr and Mrs Powell:

·          the “marriage” entered into by Mr Powell in February 1990 was undertaken for the purpose of enabling Mr Powell to gain a right to reside in Australia and for Mrs Powell to be able to join him in Australia at a later date;

·          Mr and Mrs Powell sought to conceal that deceit by making, and procuring others to make, false statements in documents or in interviews with officers of the Minister’s department; and

·          Mr and Mrs Powell continued to make false statements up to the first hearing of the Tribunal and Mr Powell gave false testimony at the commencement of that hearing which, in the course of the hearing, he withdrew and corrected.

15                  At the re-hearing before the Tribunal, evidence was adduced from employers, fellow workers, friends and acquaintances of Mr and Mrs Powell vouching for their dedication, skill and trustworthiness as employees; for their performance as loving and caring parents; and for their regular contribution of voluntary assistance to charitable and other organisations providing for the disabled and others in need within the community. There was no evidence that potentially either Mr or Mrs Powell represented any level of risk of harm to the public good if admitted to the Australian community on a permanent basis. (See:  Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 at [24].)

16                  Before the Tribunal the case for Mr and Mrs Powell was that the conduct they had engaged in to deceive officers of the Minister’s department for the purpose of obtaining the right to enter this country as immigrants did not reflect their true character and was aberrant conduct entered into in a misguided attempt to alleviate the circumstances that followed the break-up of their respective marriages. In particular, it was submitted that they had reacted to harassment suffered by Mrs Powell from her former husband and that they had been driven to seek the opportunity to re‑establish their lives together in a wholly new and distant environment.

17                  The Tribunal accepted that Mr and Mrs Powell had lived the whole of their lives in the United Kingdom as law-abiding persons of good character. The Tribunal could have concluded that neither Mr nor Mrs Powell was so lacking in the fundamental enduring moral qualities that go to a person’s good character that to permit either to reside in Australia as a permanent resident would be contrary to the public good and would represent a failure to protect the interests of the public. (See:  Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 195 - 197; Goldie (supra) at [5] – [8].)

18                  The Tribunal, however, had regard to the period of eight years over which the elaborate conduct of Mr and Mrs Powell had extended to gain entry to Australia as migrants and that the conduct included inveigling others to make false declarations on their behalf. In concluding that Mr Powell and Mrs Powell were persons not of good character, the Tribunal gave particular weight to the consideration that the outcome of their conduct was the “displacement” of others who had complied with Australian immigration requirements and the use of substantial community resources to investigate and expose the fraudulent nature of their conduct.

19                  Having reached the conclusion that it was satisfied that Mr and Mrs Powell were not of good character, the Tribunal proceeded to review, comprehensively, circumstances relevant to the exercise of the discretion provided in s 501 of the Act for the grant of a visa to be refused where the decision-maker is so satisfied. The Tribunal concluded that “it should exercise its general discretion not to refuse [Mr and Mrs Powell] visas on the basis of their bad characters”. It may be assumed that the use by the Tribunal of the words “bad character” was intended to be a reference, in short form, to the requirement of the Act, namely whether the Tribunal was satisfied that either Mr Powell or Mrs Powell was a person “not of good character”, not a positive finding that either was a person of “bad character”.

20                  The formal decision recorded by the Tribunal was that the decision under review was set aside and the matter remitted to the Minister “with a direction that Mr and Mrs Powell not be refused visas on the basis of their bad characters”.

21                  Section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) provides as follows:

“43(1)  For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

            (a)        affirming the decision under review;

            (b)        varying the decision under review; or

            (c)        setting aside the decision under review and:

                        (i)        making a decision in substitution for the decision so set aside, or

                       (ii)        remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.”

22                  Pursuant to s 43, for the purpose of reviewing a decision the Tribunal may exercise all the powers and discretions conferred on the person empowered to make the decision under the enactment. The decision to be made under s 501 was whether a visa was to be refused in circumstances to which s 501 applied. In this case the Tribunal, being satisfied that Mr and Mrs Powell were not persons of good character, had to determine, on the material before it, whether the decision under review, namely to refuse to grant the visas applied for, was the correct or preferable decision. If that involved the exercise of a discretion in redetermining the decision under review, s 43(1) of the AAT Act obliged the Tribunal to make a decision affirming, varying or setting aside the decision under review and, if the latter, to substitute the decision of the Tribunal for the decision set aside.

23                  The Tribunal made a decision in substitution for the decision set aside. The reasons of the Tribunal show that upon being satisfied that neither Mr Powell nor Mrs Powell was a person of good character, within the meaning of that term as used in s 501, the Tribunal proceeded to determine that “it should exercise its general discretion not to refuse them visas on the basis of their bad characters”. The recorded decision, however, purported to remit the matter for a decision to be made in terms directed by the Tribunal. That was not a course able to be followed pursuant to the AAT Act. Having exercised the discretion the formal determination of the Tribunal had to express the decision the Tribunal had made. The power of the Tribunal to set aside a decision and remit the matter for reconsideration only arises where the Tribunal is unable to make, and has not made, a decision in substitution for the decision set aside. (See:  Commonwealth of Australia  v Beale (1993) 30 ALD 68 per Neaves J at 70.) Section 43(1)(c)(ii) is directed to a circumstance where the decision under the enactment has not been made where the Tribunal is of the view that it is unable to make the decision required by the enactment, for example, where a requirement or condition must be satisfied before a decision can be made. (See:  Re SLE Medical Pty Ltd and Industry Research and Development Board (1988) 10 AAR 13.) The terms of s 43(1)(c)(ii) of the AAT Act enable the Tribunal to assist the decision-maker to whom the matter is returned by offering “directions or recommendations” that appear to be appropriate on the material before the Tribunal. Whether such “directions or recommendations” can fetter the exercise of a power vested in the person to whom the matter is remitted for determination under an enactment is unnecessary to consider. (See:  Flick Federal Administrative Law 2^nd ed. 1984 at [1419].)

24                  In this case the Tribunal concluded that the discretion available under s 501 was not to be exercised against Mr and Mrs Powell. No decision-making power was left to the Minister under s 501. The Tribunal had exhausted it.

25                  The terms in which the formal determination of the Tribunal was expressed may have suggested that the Tribunal had in mind that the application of other provisions of the Act and Regulations prescribing criteria for the grant of the visas applied for by Mr and Mrs Powell had to be determined. No decision in respect of those provisions was before the Tribunal. The only matter before the Tribunal was whether a decision should be made under s 501 of the Act to refuse the grant of a visa.

26                  It follows that the decision of the Tribunal must be varied to provide that there is substituted for the decision set aside a decision that neither Mr Powell nor Mrs Powell be refused a visa under s 501.

27                  The grounds of “appeal” relied upon by the Minister reflect an assumption that the decision made by the Tribunal was the decision as varied above and it is that decision that the “appeal” seeks to have set aside.

28                  The principal grounds relied upon by the Minister, said to be the questions of law on which the “appeal” is made, are as follows:

“Whether the Tribunal, in exercising its discretion not to refuse visas to Mr and Mrs Powell on the basis that they were not of good character, failed to take into account a relevant consideration, namely the public interest in ensuring honesty in dealing with Australia’s migration officials and maintaining the integrity of Australia’s immigration laws.”

and

“Whether the Tribunal failed to give adequate reasons for its decision, as required by s.43 of the Administrative Appeals Tribunal Act 1975, by failing to address the [Minister’s] submission that, in considering the exercise of its discretion, the Tribunal should take into account, as a primary consideration, the public interest in ensuring honesty in dealing with Australia’s migration officials and maintaining the integrity of Australia’s immigration laws.”

29                  It may be accepted that any conduct involving fraud or deceit in applications made under the Act must be given serious consideration when a decision is made under s 501 of the Act.

30                  Counsel for the Minister submitted that the Tribunal considered only the public interest in not allowing people of “bad character” to remain in Australia and did not consider the public interest in ensuring that applicants made applications under the Act honestly and dealt honestly with departmental officers. It was submitted that the relevant paragraphs of the Tribunal’s reasons which explained how it had determined that its discretion should be exercised did not refer to such public interest and therefore must have ignored it.

31                  That is too narrow a reading of the Tribunal’s reasons. The reasons must be read as a whole and in context. Immediately before dealing with matters bearing upon the exercise of its discretion, being additional matters not relevant to the assessment of character already undertaken by the Tribunal, the Tribunal had acknowledged the public interest in the conduct of Mr and Mrs Powell being regarded as a serious breach of the Act. That consideration was cardinal to the Tribunal’s conclusion that Mr and Mrs Powell were not persons of good character. In particular the Tribunal had regard to the acts of Mr and Mrs Powell in which they “deliberately set out on a course of conduct aimed at deceiving the country to which they wished to migrate, thereby upsetting Australia’s otherwise ordered immigration programme” and involved “Mr Powell entering into a sham marriage [subverting] the institution of marriage provided for in Australian law”.

32                  The Tribunal then went on to say that in “undertaking that course of conduct [Mr and Mrs Powell] improperly gained entry into Australia, thereby displacing others who have honestly sought to comply with Australian immigration requirements. Considerable community resources have been expended in investigating their false claims…”.

33                  The Tribunal obviously considered conduct of that nature to be antithetical to the public interest and that the corrosive nature of that conduct far outweighed other matters in favour of Mr and Mrs Powell. The Tribunal, constituted by an experienced presidential member, then proceeded to consider how it should exercise its discretion under s 501 of the Act. It is an unrealistic reading of the Tribunal’s reasons to suggest that when the Tribunal turned its mind to how it would exercise its discretion under s 501, it put out of its mind the matter of public interest in the maintenance of honest dealing under the Act, a matter it had already considered to be of paramount importance in deciding that the nature of the conduct engaged in by Mr and Mrs Powell made them persons not of good character. It was unnecessary for the Tribunal to repeat what it had said in that regard. The Tribunal was not obliged to compartmentalise its reasons to provide separate and discrete reasons in respect of the manner of the exercise of the discretion under s 501 of the Act. (See:  Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259.)

34                  The Tribunal’s process of reasoning and its awareness of the dimension of the public interest referred to in the grounds of appeal was plainly discernible in the reasons provided by the Tribunal and no failure to comply with the requirements of the AAT Act was manifest from which it may be said that the Tribunal erred in law in carrying out the review proceeding. (See:  Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402.)

35                  Neither ground of appeal has been made out.

36                  The Minister further submitted that the Tribunal erred in law by failing to provide adequate reasons for its decision by failing to address submissions made by the Minister on whether certain evidence should be accepted or rejected by the Tribunal. The ground of appeal asserted that the evidence in question was in relation to the central issue of whether Mrs Powell had been harassed by her former husband as asserted by Mr and Mrs Powell. It was submitted that evidence received from Mr Powell’s son on that issue should have been rejected.

37                  The relevant finding by the Tribunal on the issue of harassment is stated as follows:

“The Tribunal has decided that even if it accepted in its entirety Mr and Mrs Powell’s version of the events relating to Mr Bartlett-Smith that evidence would not affect the conclusion the Tribunal has reached with respect to Mr and Mrs Powell’s character. Even if Mr Bartlett-Smith’s behaviour occurred as outlined by Mr and Mrs Powell, that does not either justify or excuse the actions taken by the (sic) them in engaging in an extensive course of conduct to mislead the Australian immigration authorities in order to gain entrance into this country.”

38                  As noted earlier, it was the case put forward by Mr and Mrs Powell that their fraudulent conduct was explained, though not excused by, the pressure placed upon them by acts of harassment by Mrs Powell’s former husband. That case was rejected by the Tribunal. Even if the Tribunal accepted the son’s evidence, it was of no assistance to Mr and Mrs Powell. It was unnecessary for the Tribunal to deal with any submissions counsel may have made on how that evidence was to be assessed. The finding of the Tribunal made it irrelevant. (See:  Ahmed v Minister for Immigration and Multicultural Affairs (1999) 55 ALD 618 per Lee J at [8] – [10].)

39                  No error of law is disclosed in the decision-making process undertaken by the Tribunal in that respect.

40                  The appeal must be dismissed.

Associate:

Dated: