FEDERAL COURT OF AUSTRALIA

Lam v Minister for Immigration & Multicultural Affairs [2000] FCA 1226

MIGRATION – judicial review of a decision of the Minister under s 501A(2) of the Migration Act 1958 (Cth) to refuse to grant the applicant a Class 812 Transitional (Permanent) Visa – delegate of the Minister had earlier decided to refuse to grant the visa under s 501 on the ground that the applicant, who had been convicted and sentenced to nine years and four months imprisonment for possession of heroin, was not a person of good character and therefore could not satisfy criterion 4001 of the Migration (1993) Regulations – the Administrative Appeals Tribunal ultimately set aside that decision, substituted a finding that the applicant did meet the requirements of criterion 4001 and remitted the matter to the delegate for consideration of the remaining criteria for the grant of the visa – the Minister then exercised his power under s 501A(2) to refuse to grant the visa on the ground that the Minister suspected that the applicant did not pass the character test in s 501 and the applicant had not satisfied the Minister that he did, and because the refusal of the visa was in the national interest – whether the Minister lacked jurisdiction to make the decision under s 501A – whether it could be said that the Tribunal had made a decision, within the meaning of s 501A(1)(c), “to grant a visa to a person as a result of not exercising the power conferred by subsection 501(1) to refuse to grant a visa to the person” – whether a literal construction of s 501A(1)(c) would produce a result that is absurd and at odds with the apparent object of the provision – whether the words would bear an alternative construction which would give effect to the apparent object of the provision

Migration Act 1958 (Cth), s 476(1)(b) and (c), s 501, s 501A

Migration (1993) Regulations, Sch 2 Item 812.736(1), Sch 4 criterion 4001

Administrative Appeals Tribunal Act 1975 (Cth), s 43(1)

Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32, considered

Department of Social Security v Ridley (1992) 40 FCR 43, referred to

Occidental Life Insurance Company of Australia Ltd v Life Style Planners Pty Ltd (1992) 38 FCR 444, referred to

Minister of State for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565, referred to

Daher v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 107, referred to

Connections 2000 Pty Ltd and Minister for Immigration and Multicultural Affairs [1999] AATA 357, considered

Ross and Minister for Immigration and Multicultural Affairs [1999] AATA 965, considered

Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513, referred to

Tutugri v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 592, referred to

KWONG LEUNG LAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 710 OF 2000

LEHANE J

1 SEPTEMBER 2000

SYDNEY

THE COURT ORDERS THAT:

1.         The question, ordered to be decided separately, be answered “no”.

2.         The matter be listed for further directions at 9.30 am on 5 September 2000.

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

REASONS FOR JUDGMENT

1                     The applicant seeks an order, under Pt 8 of the Migration Act 1958 (Cth), setting aside a decision of the Minister made (or purportedly made) under s 501A(2) of the Migration Act 1958 (Cth).  The effect of the decision was to refuse the applicant’s application for a category of visa described as 812 Transitional (Permanent) Visa.

2                     The application is made on three grounds.  The first is that the Minister lacked jurisdiction to make the decision and the decision was not authorised by s 501A of the Migration Act (Migration Act, s 476(1)(b) and (c)); the second is that the decision involved an exercise of discretionary power in accordance with a policy without regard to the merits of the particular case (Migration Act, s 476(1)(d) and s 476(3)(c)); and the third is that the decision was induced by actual bias (Migration Act, s 476(1)(f)).  It is clear, and undisputed, that the decision is a judicially‑reviewable decision (Migration Act, s 475(1)(c)) which the Court has jurisdiction to review upon an application made in accordance with s 478 of the Migration Act.

SEPARATE QUESTION

3                     The applicant proposes to rely on evidence in relation to the second and third grounds of his application.  For that purpose he served on the Minister, shortly before the hearing, a notice to produce certain documents.  Given the short time between service of the notice and the hearing, no documents were produced.  The parties agreed that it was convenient to deal first, and separately, with the first ground, which involves a short point of statutory construction, leaving the other grounds to be considered later if the applicant is unsuccessful on the first.

4                     Accordingly, I ordered that the following question be decided separately and before any further trial in the proceedings: “Is the applicant entitled to relief on the ground stated in par 1 of his amended application?”  These reasons are concerned with that question.

FACTS AND STATUTORY PROVISIONS

5                     The relevant facts are not controversial.  They are taken substantially from reasons given by Mathews J, as President of the Administrative Appeals Tribunal, on 3 February 1999.  I shall mention, later, the place of that decision in the history.

6                     The applicant is a Chinese national, born in the Peoples Republic of China on 21 September 1959.  He had little schooling.  He entered Hong Kong illegally in 1979 but later became entitled to remain there.  In December 1985, he stowed away on a ship bound from Hong Kong to Australia.  On 20 January 1986, the day on which he arrived in Sydney, he was issued with a temporary entry permit expiring on the same day.  He remained in Australia illegally and obtained employment at a Chinese restaurant in Sydney.  On 12 April 1988, he married Ms My Y Lu, then a Vietnamese citizen residing in Australia.  The marriage ceremony was a traditional Chinese one; it was followed on 8 September 1990 by a ceremony which rendered the marriage formally valid under Australian law.  A son was born on 20 November 1988 and daughter on 31 October 1998.

7                     In 1989, the police discovered a large quantity of heroin hidden in the roof of the applicant’s house.  He pleaded guilty in the District Court of New South Wales to a charge of possessing a prohibited import and was sentenced to a minimum term of seven years, dating from 11 May 1989, with an additional term of two years and four months.  He was an exemplary prisoner.  His wife maintained close contact with him by visits and telephone calls.  The son accompanied Ms Lu when she was able to visit the applicant.  During the last few months of his sentence, the applicant was allowed to go home on day release for one day each week.  Upon his release in May 1996, he returned to live with his wife and son in Lakemba.  Since his release the applicant has worked as a cook, earning $250 per week.  Mathews J found that his relationship with his wife and son is close.  The applicant had not reoffended since his release.

8                     On 20 December 1993, the applicant applied for a December 1989 (Permanent) Entry Permit.  By virtue of the Migration Reform Act 1992 (Cth) the application was, after 1 September 1994, to be treated as an application for a Transitional (Permanent) Visa.  Among the criteria to be satisfied at the time of the decision on his application was that the applicant “satisfies public interest criteria 4001 …” (Migration (1993) Regulations, Sch 2 Item 812.736(1)).  Those criteria were set out in Sch 4 to the Migration (1993) Regulations, as follows:

“4001.             (1)       The applicant meets the requirements of subclause (2), (3) or (4).

(2)        An applicant meets the requirements of this subclause if, after appropriate enquiries, the Minister has decided that there is no evidence of anything that might justify the refusal, under section 180A of the Act, to grant the visa or entry permit.

(3)        An applicant meets the requirements of this subclause if, after appropriate enquiries and consideration of all available evidence of anything that might justify the refusal, under section 180A of the Act, to grant the visa or entry permit, the Minister has decided that that evidence is insufficient to satisfy the Minister of any of the matters referred to in paragraph (1)(b) and subsection (2) of that section.

(4)        An applicant meets the requirements of this subclause if, despite being satisfied that the refusal, under section 180A of the Act, to grant the visa or entry permit is justified, the Minister has decided not to exercise the power under that section to refuse to grant the visa or entry permit.”

Section 180A of the Migration Act was renumbered as s 501 by the Migration Legislation Amendment Act 1994 (Cth).

9                     On 6 March 1996, shortly before the applicant’s release from prison, a delegate of the Minister decided to refuse the visa application, in exercise of the authority conferred on the Minister by s 501 of the Migration Act.  That meant that the public interest criterion 4001 had not been satisfied.  The delegate made no decision as to whether the applicant met any of the other criteria for the visa.  Section 501, as it then stood, provided 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.”

10                  The applicant applied to the Administrative Appeals Tribunal for review of the delegate’s decision.  He was entitled to do so under s 500(1)(b) of the Migration Act, which provided that:

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

                        …

                        (b)        decisions of the Minister under s 501; …”

11                  By a decision dated 11 June 1997, the Tribunal affirmed the delegate’s decision.  The applicant then applied to the Court, under Pt 8 of the Migration Act, for review of the decision of the Tribunal and, on 4 March 1998, the Court ordered that the decision be set aside and that the matter be remitted to the Tribunal, differently constituted, for determination according to law.  It was in those circumstances that the matter was considered by Mathews J, as President of the Tribunal.  Her decision dated 3 February 1999 was expressed as follows:

“The Tribunal sets aside the decision under review and in substitution therefor finds that Mr Lam meets the requirements of criterion 4001(4) under the Migration Regulations.  The matter is remitted to the respondent for consideration of the remaining aspects of Mr Lam’s application.”

12                  The matter was then referred to the Minister for consideration under s 501A of the Migration Act.  That provision was introduced by s 3 of, and item 23 of Sch 1 to, the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth).  Subsections (1) and (2) provide:

“501A  (1)       This section applies if:

                        (a)        a delegate of the Minister; or

                        (b)        the Administrative Appeals Tribunal;

                        makes a decision (the original decision):

(c)        to grant a visa to a person as a result of not exercising the power conferred by subsection 501(1) to refuse to grant a visa to the person; or

(d)        not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person.

Action by Minister – natural justice applies

        (2)           The Minister may set aside the original decision and

(a)        refuse to grant a visa to the person; or

(b)        cancel a visa that has been granted to the person;

if:

(c)        the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(d)        the person does not satisfy the Minister that the person passes the character test; and

(e)        the Minister is satisfied that the refusal or cancellation is in the national interest.”

13                  Subsection (5) requires the power under s 501A(2) to be exercised by the Minister personally.  The transitional provisions – particularly item 33 of Sch 1 – of the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act have the result that s 501A applies in relation to a decision made under s 501 as in force before that Act came into effect.  The “character test” referred to in s 501A is, however, to be found in s 501 as amended.  It is similar to, but in some respects more rigorous than, the test previously to be applied under s 501(1) and s 501(2).  It is as follows:

“(6)     For the purposes of this section, a person does not pass the character testif:

(a)       the person has a substantial criminal record (as defined by subsection (7)); or

(b)       the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

(c)        having regard to either or both of the following:

(i)        the person’s past and present criminal conduct;

(ii)       the person’s past and present general conduct;

the person is not of good character; or

(d)       in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:

(i)        engage in criminal conduct in Australia; or

(ii)       harass, molest, intimidate or stalk another person in Australia; or

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

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

(v)       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 in violence threatening harm to, that community or segment, or in any other way.

Otherwise, the person passes the character test.

Substantial criminal record

(7)       For the purposes of the character test, a person has a substantial criminal record if:

(a)       the person has been sentenced to death; or

(b)        the person has been sentenced to imprisonment for life; or

(c)        the person has been sentenced to a term of imprisonment of 12 months or more; or

(d)       the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or

(e)        the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.”

Succeeding subsections further refine the definition, but not in ways that matter for present purposes.

14                  The Department sought and received submissions from the applicant’s solicitors on the question whether the Minister should exercise his power under s 501A(2).  On 15 June 2000, the Minister made the decision which the applicant now seeks to set aside.  The Minister decided that the applicant did not pass the character test and had been unable to satisfy the Minister that he did pass the character test; and that refusal of the application was in the national interest.  Accordingly, the Minister decided that the application should be refused.

THE CONSTRUCTION POINT

15                  The applicant’s argument is very simple.  The Minister may exercise powers under s 501A(2) only in relation to an “original decision”.  An original decision, as defined in subs (1), is a decision of a delegate of the Minister or of the Tribunal either to grant a visa “as a result of not exercising the power conferred by subs 501(1) to refuse to grant a visa …” or not to exercise the power under s 501(2) to cancel a visa.  Here, the Tribunal did not make a decision of either of those kinds.  Plainly it did not decide not to exercise the power to cancel a visa.  Nor did it decide to grant a visa.  The decision was merely as I have quoted it: to set the delegate’s decision aside; to find that the applicant met the requirements of criterion 4001(4); and to remit the matter to the Minister for consideration of the remaining aspects of the application (that is, those criteria as to which the delegate had made no findings).

16                  Senior counsel for the Minister submitted that, literally interpreted in that way, s 501A would have no operation in relation to decisions of the Tribunal.  When the Tribunal reviews a decision under s 501, the Tribunal will never decide to grant a visa.  As in this case, there will always be other criteria to be considered by the Minister or the Minister’s delegate.  Plainly the provision was intended to operate in relation to decisions of the Tribunal.  A construction which gave it no such operation would produce a result which was so capricious or irrational that another construction, if open, should be preferred.  Another construction was open which would give the provision its intended operation: the words “makes a decision to grant a visa” might – and should – be read as referring to a decision in favour of the grant of a visa, that is, a decision that would enable a visa to be granted.

17                  Counsel for the applicant submitted that to read the provision literally was not to deprive it of operation.  The Tribunal might, in a proper case, make a decision to grant a visa, exercising its powers under s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) to “exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision” and, having set aside the decision under review, to make a decision in substitution for it (s 43(1)(c)(i)); counsel referred to Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32 at 39, 40).

18                  I was referred also to two cases in which a Deputy President of the Tribunal had in terms made decisions to grant visas: Connections 2000 Pty Ltd and Minister for Immigration and Multicultural Affairs [1999] AATA 357 and Ross and Minister for Immigration and Multicultural Affairs [1999] AATA 965.  I do not think, however, that those decisions help very much.  It is by no means clear that, in either case, the decision as recorded represented the correct result of the Tribunal’s findings.  In each case it appears that there were other criteria which remained to be considered; and the decision recorded in Connections 2000 was that “the applicant be granted a visa pursuant to s 501 of the Migration Act 1958”.  As counsel for the Minister pointed out, s 501 does not itself authorise the grant of a visa.

19                  It is important to bear in mind what precisely the decision is which the Tribunal is given power to review.  Under the previous version of s 500(1)(b), it was a decision of the Minister under s 501.  Under the amended version of the section, it is a decision of a delegate of the Minister under s 501.  Section 501, in both its present and its previous form, contemplates the refusal to grant a visa (any visa), or a decision to cancel a visa (any visa), on a particular ground or, perhaps more accurately, where particular circumstances exist (circumstances which include the Minister’s – or the Minister’s delegate’s – satisfaction, or lack of it, as to certain matters).  Where a decision is made under s 501 to cancel a visa, no difficulty arises as to the identification of the relevant decision.  There are no other criteria to be considered.  If the relevant circumstances exist, a visa may be cancelled.  If the Tribunal, upon review of a decision under s 501 to cancel a visa, decides to set aside the decision, there is no reason to think that it could not properly substitute a decision not to cancel the visa.  (It follows, of course, that a literal interpretation does not totally deprive s 501A of operation in relation to decisions of the Tribunal: it has operation in relation to a decision of the Tribunal of the kind referred to in s 501A(1)(d)).

20                  A decision to refuse to grant a visa is, however, another matter.  A decision of that kind, under s 501, is not a decision to refuse a visa of a particular class having regard to all the criteria applicable to that class of visa, including the “character” criterion.  It is, as I have pointed out, a decision to refuse to grant a visa (any visa) on the basis that particular circumstances exist.  That, and that alone, is the decision which the Tribunal is empowered to review.  The case is, I think, analogous to the authorities which have distinguished Hodgson, rather than to Hodgson itself (see Department of Social Security v Ridley (1992) 40 FCR 43 at 57, 58; Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513 at 522, 523; Tutugri v Minister for Immigration and Multicultural Affairs  (1999) 95 FCR 592 at 599).  The view that the matter before the Tribunal, and the scope of its authority, are limited by the circumstances enlivening the power to make a decision under s 501 receives support also from the decision of the Full Court in Daher v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 107 at 110, 111.

21                  A literal construction of s 501A(1) would, thus, give s 501A an effect in relation to decisions of the Tribunal referred to in s 501A(1)(d) but, for the reasons I have given, none in relation to decisions made by the Tribunal (referred to in s 501A(1)(c)) in consequence of a conclusion that the power under s 501(1) to refuse to grant a visa should not be exercised.  There are, I think, difficulties arising from a literal construction of par (c) even in relation to a decision of a delegate of the Minister.  Under s 501 a delegate may decide, having regard to the particular circumstances with which the section is concerned, that a visa application either should or should not be refused.  A decision by a delegate under that section not to refuse a visa does not, by itself, have the “result” that a visa is granted.  It may sensibly be said that a decision is made to grant a visa as a result of a finding that all the relevant criteria are satisfied.  It is already straining language somewhat, however, to say that a delegate of the Minister makes a decision to grant a visa to a person as a result of not exercising the power conferred by s 501(1) to refuse to grant it.  To say that a delegate does so is hardly to apply a literal construction of par (a) and par (c) of s 501A(1).  There seems no reason to doubt, however, though it does not arise in this case, that it is nevertheless a correct construction.

22                  Of course, the problem is less obvious with the delegate’s decision than with a decision of the Tribunal, because the delegate making the decision under s 501 is likely, as the Tribunal is not, to proceed to make the decision to grant the visa (though perhaps there is no obvious reason why the two aspects of the problem should not be tackled by two different delegates).  The less obvious problem about the delegate’s decision points up the same apparent drafting quirk as does the more obvious problem with the Tribunal’s decision: the drafter has confused what the provision is really aimed at – the making of a decision under s 501 – with that with which it is not really concerned, namely the consideration of other criteria and the ultimate grant of a visa.  The problem may have arisen from a perceived need – I see no reason why it should be regarded as a genuine need – to specify the ultimate decision rather than a decision made on the way to the ultimate decision.

23                  But to say that is not to solve the present problem.  The question is whether this is a case where, more than one interpretation being reasonably open, the construction to be preferred is the one which avoids an unjust, capricious or unreasonable result, or an absurdity (Occidental Life Insurance Company of Australia Ltd v Life Style Planners Pty Ltd (1992) 38 FCR 444 at 449, 450): that is, a construction which will give an aspect of the provision, otherwise without effective operation, its apparently intended operation (Minister of State for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 574).  Or is this, on the other hand, a case where the construction for which the Minister contends is one which the language used will not reasonably bear?

24                  The consequences of a literal interpretation can, in my view, properly be described as absurd.  In addition to aspects of the provisions already mentioned, it is instructive to consider what might happen in this case if the separate question were answered, “yes”.  The visa application would, in accordance with the decision of the Tribunal, be further considered and would, presumably, either be granted or refused depending upon whether the remaining criteria were satisfied.  If it was refused the applicant, presumably, might seek review by the Migration Review Tribunal under Pt 5 of the Migration Act.  If that Tribunal found that the criteria were satisfied it might, no doubt, substitute a decision that the visa be granted.  The Minister could not take action, in relation to that decision, under s 501A because decisions of the Migration Review Tribunal are not “original decisions”.  If, on the other hand, the delegate found that the remaining criteria were satisfied and decided to grant the visa, equally it is difficult to see that the Minister could set aside the decision under s 501A: the delegate (on that hypothesis) did not make the decision to grant the visa as a result of not exercising the power conferred by s 501(1) but rather because, the Tribunal having by its decision removed one impediment, the delegate found that the remaining criteria were satisfied.  (It is unnecessary to consider how, if at all, the Minister’s power to cancel a visa under s 501 might operate in those circumstances).

25                  The question is not easy and it is one on which minds might well differ.  In my view, the literal construction proposed by the applicant does indeed produce a result so absurd, and so at odds with the apparent object of the provision, that an available construction which would avoid those difficulties is to be preferred.  Because both par (c) and par (d) of s 501A(1) are plainly intended to operate in respect of both decisions of a delegate and decisions of the Tribunal, par (c) should be given, if possible, a construction which encompasses the decisions which a delegate and the Tribunal are authorised to make in exercise of the power conferred by s 501.  In neither case does that include, literally, a decision to grant a visa as a result of not exercising the power conferred by s 501(1).  In each case a decision may be made in exercise of the power under s 501(1) which may be described as an exercise in favour (but, because other criterion must be satisfied, not conclusively in favour) of the grant of a visa.  That, which is the sense for which the Minister contends, is the sense in which, in my view, the expression “a decision to grant a visa” may and should be read.

CONCLUSION

26                  For those reasons I answer the question, ordered to be separately decided, “no”.  It will be necessary to make directions in relation to the trial of the remaining grounds of the application.

Associate:

Dated:              1 September 2000