FEDERAL COURT OF AUSTRALIA

Ross v Minister for Immigration & Multicultural Affairs [2000] FCA 1716

MIGRATION – cancellation of visa under s 501(2) of the Migration Act 1958 – where Minister’s decision indicated “I do not exercise my discretion to not cancel the visa” – whether that decision is a decision to cancel the visa - whether Minister wrongly interpreted his discretion – whether decision might have been different if not for misinterpretation – whether Minister made an error of law within s 476(1)(e) of the Migration Act 1958

Migration Act 1958, s 476(1)(e), s 501(2)

Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998

Migration Regulations 1994

Zhao v Minister for Immigration and Multicultural Affairs [2000]FCA 1235 cited

Hall v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 387 cited

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 - distinguished

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited

Halmi v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 1 distinguished

McDonald v Director-General of Social Security (1984) 1 FCR 354 cited

RITA MARIE ROSS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Q 43 of 2000

SPENDER J

BRISBANE

14 NOVEMBER 2000

THE COURT ORDERS THAT:

1.                  The respondent’s decision to cancel the special category visa (NZ) of Rita Marie Ross be set aside.

2.                  The respondent pay the applicant’s cost of and incidental to the application, including reserved costs, to be taxed if not agreed.

THE COURT DECLARES THAT:

3.                  The applicant is the holder of a special category visa (NZ).

4.                  The applicant is not an unlawful non-citizen.

5.                  There is no authorisation for the applicant to be detained in immigration detention on the basis of cancellation of her special category visa (NZ).

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

REASONS FOR JUDGMENT

1                     On 9 November 2000, at the conclusion of the hearing of an application by Rita Marie Ross to set aside the decision of the Minister for Immigration and Multicultural Affairs under s 501(2) of the Migration Act 1958 (the Act) to cancel her special category visa (NZ), I made orders that the respondent’s decision to cancel the visa be set aside and the respondent pay the applicant’s cost of and incidental to the application, including reserved costs, to be taxed if not agreed. I also declared that the applicant is the holder of a special category visa (NZ), is not an unlawful non-citizen, and that there is no authorisation for her to be detained in immigration detention on the basis of cancellation of her special category visa (NZ).

2                     I made those orders and declarations because Ms Ross was then detained in immigration detention. I observed then:

“Under s 501(2) of the Migration Act 1958 the Minister must first decide whether paragraphs (a) and (b) are satisfied. If so, he must proceed to consider whether, in the exercise of his discretion, the visa of the person should be cancelled. In my opinion, the Minister did not do that. He was almost certainly misled by the formulation of the options of decisions that he might make, that was given to him by his departmental officers. While I am very conscious that on a consideration of a decision-maker’s decision the Court should not be over zealous in its scrutiny, or nit-picking or unsympathetic to the circumstances in which administrative decisions are made, this is not a case where the conclusion that I reach is the consequence of any over zealous scrutiny of the way the Minister has expressed his decision.”

3                     I indicated that I would give full reasons for those orders on 14 November 2000. These are those reasons.

4                     The applicant is a citizen of New Zealand who arrived in Australia on 7 June 1990. She was the holder of a special category visa (NZ): see s 32(2)(a) of the Act, and reg 5.15A of the Migration Regulations 1994. On 19 June 1998 the applicant was convicted in the District Court of Queensland of three counts of misappropriation and sentenced to imprisonment for three years on each charge, and was also sentenced to terms of imprisonment for one year for a number of other offences. All terms were to be served concurrently.

5                     On 5 November 1998, a delegate of the Minister ordered the deportation of the applicant pursuant to s 200 of the Act. That decision was set aside on 1 March 1999 by the Administrative Appeals Tribunal constituted by Deputy President Breen.

6                     On 10 September 1999, another delegate of the Minister sent a letter to Ms Ross headed “Notice of Intention to Cancel Visa Under Subsection 501(2) of the Migration Act 1958”.

7                     Notwithstanding the heading which speaks of an intention to cancel the visa, in the body of that document there are statements having a different complexion. Early in the document the statement appears:

“It has come to the attention of the Department that this visa may be liable to cancellation under section 501 of the Migration Act 1958 (the Act).”

And later:

“In reaching a decision whether to cancel the visa the Minister will have regard to the matters noted above and the attached Minister's Direction No 17 titled ‘Direction under Section 499 - Visa Refusal and Cancellation under Section 501 Migration Act 1958’.”

At the end of that document, this paragraph appears:

“Please provide any written comments and information to this office for my attention. You may respond by mail (or facsimile) to the address below. If you do not respond by 15 October 1999, a decision on whether there are grounds to cancel your visa will be made using information already held by the Department.” (Emphasis in each excerpt added.)

8                     Why the document does not indicate that a decision would then be made on whether to cancel the visa is not clear to me.

9                     The difficulty that the heading engenders in the particular circumstances of this case is reflected in observations by the Full Court of the Federal Court (French, Hill and Carr JJ) in Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235, a judgment of 1 September 2000. There the Full Court was concerned with s 119 of the Act, in the context of cancellation under s 116. The Full Court said:

“Section 119 addresses both the content and the manner of notification to be given by the Minister or the Minister’s delegate before proceeding to cancellation under s 116. Dealing first with its content, the notification must contain a statement ‘that there appear to be grounds for cancelling’ the visa. It must provide particulars of the grounds and ‘of the information (not being non-disclosable information) because of which the grounds appear to exist’. The visa holder is to be invited to show within a specified time that the grounds do not exist or that there is a reason why the visa should not be cancelled (s 119(1)).

The section contemplates that when the notice is issued the decision-maker will not have formed a concluded view on the question of cancellation. The notice is to specify no more than that there “appear” to be grounds for cancellation. The plain statutory intention of this verbal formula is to assure the visa holder that the matter has not been finally decided. It also indicates that at this stage the decision-maker must not have finally decided the matter. It is quite inappropriate therefore to entitle the notice given as a ‘Notice of Intention to Cancel Visa’. This suggests, that without hearing from the visa holder, the decision-maker has already reached a state of satisfaction necessary to cancel the visa under s 116. It is misleading not only to the visa holder but also, and perhaps more dangerously, to the official who issues it. The notice in this case however went on to carry out the statutory requirement of notifying the visa holder that ‘there may be a ground for cancellation’ of the visa.”

10                  I share the view reflected in that passage that the notice given as a “Notice of Intention to Cancel Visa” suggests that the decision-maker has already reached the state of satisfaction necessary to cancel the visa, in this case under s 501(2) of the Act. Moreover, it is consistent with a view that s 501(2) imposes an obligation on the Minister to cancel the visa, at least unless there is material before him which has the consequence that the Minister decides not to cancel the visa.

11                  On 12 October 1999, Ms Ross provided a submission in response to the delegate’s notice. The parties in these proceedings accept that, on 28 February 2000, the Minister decided to cancel the applicant's visa pursuant to s 501(2) of the Act, although for some reason unknown to me there does not anywhere appear a plain statement that the Minister in fact cancelled Ms Ross' visa. The decision was communicated to the applicant by letter dated 22 May 2000, enclosing a "decision record" which set out the reasons for the decision.

12                  Section 501(2) of the Act provides:

“The Minister may cancel a visa that has been granted to a person if:

(a)          the Minister reasonably suspects that the person does not pass the character test; and

(b)          the person does not satisfy the Minister that the person passes the character test.”

13                  The document referred to as the “Decision Record for Visa Cancellation under Section 501” comprises a two-page document headed “Minute” to the Minister, together with an attached twelve page further document. Importantly, the Minute to the Minister contains the following statement:

“On 10 September 1999 Ms Ross was notified of your intention to cancel her visa under Section 501 of the Act. The cancellation grounds were explained to her and she was invited to submit any comments that she thought were relevant to consideration of her visa cancellation. Ms Ross responded on 12 October 1999.” (Emphasis added.)

14                  In the second document, headed “Issues for Consideration for Possible Visa Cancellation under Section 501(2) of the Migration Act 1958”, Part C is headed “Assessment for Cancellation” and notes:

“Ms Ross does not pass the Character Test under s 501(6)(a) because she has a substantial criminal record as defined in subsection 501(7)(c)”.

15                  Importantly, Part D of the document, under the heading “Discretion”, provides:

“If you agree that with the assessment that Ms Ross does not pass the Character Test for the purpose of section 501 of the Act, you must then consider your discretion not to cancel her permanent visa.

Ms Ross was notified by letter dated 10 September of the intention to cancel her visa under s 501 of the Act. The cancellation ground was set out in the notice and she was invited to submit any comments that she thought relevant to the consideration of the possible cancellation of her visa …” (Emphasis added.)

16                  The final part of the document is headed “Decision”. Since it is central to this application, I set it out in full:

“I have considered all relevant matters including (1) an assessment of the Character Test within the meaning of s501 Migration Act 1958, (2) my Direction under s499 of the Act and the non citizen’s comments, and have decided that:

MINISTER’S DECISION

Ms Ross does not pass the Character Test under s501 AGREED/NOT AGREED

Ms Ross is unable to satisfy me that she passes the CT AGREED/NOT AGREED

I do not exercise my discretion to not cancel the visa AGREED/NOT AGREED

Ms Ross’s visa should be cancelled AGREED/NOT AGREED

Philip Ruddock

Minister for Immigration and Multicultural Affairs

28 February 2000”

The words “not agreed” have in each case been crossed out by hand, and the document has apparently been signed by the Minister.

17                  The applicant filed an application for review of the respondent's decision in this Court on 31 May 2000. On 30 December 1999 she was discharged from the terms of imprisonment she was serving. However, on 22 May 2000 she was taken into immigration detention, and she remained in that detention until released pursuant to the orders and declarations I made on 9 November 2000.

18                  The submissions of the applicant rely on what the Minister said he did. It was submitted on her behalf that the Minister acted on the basis that he had a discretion not to cancel the visa, that he made a decision not to exercise that discretion, and that the consequence of that decision was that the visa was cancelled.

19                  It is accepted by the applicant that s 501(2) confers a discretion in the Minister to cancel the visa. However, the decision that the Minister in fact made, being the decision that he said he made, namely “I do not exercise my discretion to not cancel the visa”, does not, either as a matter of language and logic, or as a matter of fact, amount to a decision to cancel Ms Ross’ visa.

20                  Section 501(2) in its current form was inserted by Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth), commencing on 11 December 1998. However, item 28 of schedule 1 of that Act makes it clear that the amended s 501(2) applies to visas granted before or after the commencement of the amending Act; see also Hall v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 387 at paragraphs 4 and 5. For the applicant it was not disputed that she failed the character test under s 501(6)(a), and it was accepted that the Minister was entitled to make a decision to cancel the visa under s 501(2), notwithstanding that the Administrative Appeals Tribunal had set aside the earlier decision of a delegate of the Minister to make a deportation order against her.

21                  The submission for Ms Ross is that, if there was anything clear about the statement of the Minister that he agreed “I do not exercise my discretion to not cancel the visa” and “Ms Ross’s visa should be cancelled”,it is that the Minister took the view that under s 501(2) he had a “discretion to not cancel the visa”, that he made a decision not to exercise that discretion, and that without exercising that discretion he decided that the visa “should be” cancelled.

22                  The legal representative of the Minister contends that the applicant's case, rather than relying on the substance of the matters considered by the Minister in exercising his discretion, was based entirely on a pedantic approach to the words used at the end of the document for administrative purposes to describe the decision made. It was said on the Minister's behalf that the words “I do not exercise my discretion” in fact refer to the exercise of the discretion in a particular manner, and the agreement by the Minister with the proposition “I do not exercise my discretion to not cancel the visa” means he exercises a discretion (which allows him to cancel or not cancel the visa) in a manner negative to the applicant.

23                  Of the argument advanced by the applicant that the use of the words “discretion to not cancel the visa” indicates that the Minister believed he was required to cancel the visa unless he chose to exercise his discretion not to do so, it was submitted on the Minister's behalf that that assertion was at odds with those matters considered by the Minister in exercising his discretion, and there was nothing to suggest that the Minister did anything other than to properly consider those matters referred to in his relevant Direction and to embark on the appropriate balancing process.

24                  It was further submitted for the Minister that the words used to record the decision for administrative purposes should not be used to overshadow the process which was in fact embarked upon. The contention for the Minister was that he has under s 501(2) a discretion “to cancel the visa”,and equally a discretion “to not cancel the visa”; nothing turns on which expression is used, and the use of one necessarily implies the power to do the other. Importantly it was submitted:

“… the words used to record the decision… indicate that the Minister has a choice between two alternatives: (1) to exercise the discretion to not cancel the visa, or (2) to not exercise the discretion to not cancel the visa. If one adopts a pedantic approach and uses the double negative this equates to either: (1) to exercise the discretion to not cancel the visa, or (2) to exercise the discretion to cancel the visa. To record the choices in this manner does not demonstrate that the Minister believed he was obliged to cancel the visa unless he chose to exercise his discretion not to do so.”

25                  I do not accept the correctness of this last submission. In my view, the passage involves a misunderstanding of s 501(2). I should say at this point that I do not at all understand why the officers advising the Minister do not follow the terms of the section in describing the choices which the Minister might make in his decision. Here, we are not simply concerned with a question of two negatives which are asserted on the Minister's behalf to amount to a positive exercise of discretion to cancel the visa. There is in fact a third negative, and just what the position would be if the Minister had indicated “not agreed” to the proposition “I do not exercise my discretion to not cancel the visa”, it is fortunately not necessary to consider.

26                  In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, Brennan CJ, Toohey, McHugh and Gummow JJ said at 271:

“When the Full Court referred to ‘beneficial construction’, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic [(1993) 43 FCR 280]. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be ‘concerned with looseness in the language … nor with unhappy phrasing’ of the reasons of an administrative decision-maker [at 287]. The Court continued [at 287]: ‘The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error’.

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed [see McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616].”

To cavil with “an eye keenly attuned” would be an example of the sort of approach that passage seeks to eschew.

27                  The difficulties in this case, while of the Minister's officers’ making, are not simply a matter of semantics, or the consequence of a pedantic view of the words used by the Minister to indicate his decision. The words put before the Minister as recording the choices open to him, and his indication of his agreement with the statement “I do not exercise my discretion to not cancel the visa”, demonstrate to me that he wrongly interpreted s 501(2) as conferring a discretion to not cancel the visa. That was an error of law within s 476(1)(e) of the Act. It is apparent that the Minister believed that once paragraphs (a) and (b) of s 501(2) were satisfied he was obliged to cancel the visa unless he positively decided that he should not do so.

28                  The Minister’s misunderstanding of the nature of the discretion conferred by the section and, implicitly, his view that there was an obligation on his part to cancel the visa unless he positively decided that he should not, was not irrelevant to his decision. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Mason CJ said at 353:

“A decision does not ‘involve’ an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different. The critical question on this aspect of the case is whether, but for the alleged error of law on which the respondents rely, the decision might have been different by reason of the possibility that the Tribunal would not have made the findings of fact relating to the settlement in the terms in which they were made.”

29                  The basis for my conclusion in this case is simply stated: I do not agree with the contention for the Minister that a discretion not to cancel a visa is the same as a discretion to cancel a visa. In terms, s 501(2) is permissive: it confers a power to cancel a visa in the exercise of the Minister's discretion. The interpretation given to the section by the Minister, as evidenced by the explanations proffered to him by his officers and by what he said he decided, is that the section obliges him to cancel a visa unless he is satisfied that he should not. There is, in my view, an important difference between power and obligation. I want to make it plain that I am not concerned in these proceedings with any question of onus: the question in this case flows from a possible difference in what the Minister does, depending on whether the material before him positively satisfies him that the visa should be cancelled (which in my view is what the section directs) or whether it does not. There is no evidence as to whether the material satisfied the Minister one way or the other in respect of what he should do about cancelling the visa. Both the material put before the Minister and the Minister’s decision itself, indicate that the Minister thought that he was required to cancel the visa unless he was positively of the state of mind that he should not cancel the visa.

30                  In Halmi v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 1, Hill J said at 11:

“The… submission is that the Minister made an error of law (a ground of judicial review open to the applicant) in that he applied the wrong test. So it is said that the Minister had in correspondence advised that he had declined to exercise his discretion not to cancel the applicant’s visa pursuant to s 501(2) of the Act, whereas that is not the matter which falls for decision by the Minister under that section.

Again, in my mind, the submission is misconceived. That the Minister directed his mind to the right matter for decision emerges clearly enough from the statement of reasons which the Minister ultimately gave to the applicant. The Minister in those reasons says:

‘Before exercising my discretion to cancel, I had formed a reasonable suspicion, under s 501(2)(a), that Mr Halmi did not pass the Character Test due to the fact that in 1990 he was convicted for a crime, ‘supply of prohibited drug (heroin)’ and sentenced to 18 months imprisonment, plus a further 8 months imprisonment. I also took account of the fact that in 1996 Mr Halmi was convicted for a crime of ‘supply of prohibited drug …’ and sentenced to 2 years and 3 months on each count with an additional term of 1 year and 9 months imprisonment.

In accordance with s 501(2)(b), I was not satisfied that Mr Halmi passed the Character Test on grounds under s 501(b)(a) because he has a substantial criminal record as defined in s 501(7)(c).

As I was not satisfied that Mr Halmi passed the Character Test I exercised my discretion to cancel his visa under s 501(2).’

Even if the Minister or those advising him, did set out the test wrongly in correspondence (and it is open to argument that in fact neither he nor they did so), the fact is the Minister's decision makes it clear that no error of law was involved.”

31                  In that case it was plain that the Minister exercised his “discretion to cancel [Mr Halmi’s] visa under 501(2)”. What the Minister indicated in the present case was “I do not exercise my discretion not to cancel the visa”.

32                  While it is in a very different context, and involves quite different statutory provisions, there are observations in McDonald v Director General, Social Security (1984) 1 FCR 354 which are of some assistance in the present case. Woodward J in that case said at 358:

“Section 46(1) reads:

‘If,

(a)     having regard to the income of a pensioner;

(b)     by reason of the failure of a pensioner to comply with section 44 or 45; or

(c)      for any other reason,

the Director-General considers that the pension which is being paid to a pensioner should be cancelled or suspended … the Director-General may cancel or suspend the pension … accordingly’.

Whichever provision the Director-General chooses to act under (and in this case, although it is not entirely clear, he seems to have purported to act under s.46(1)), if he is of the opinion that a person is not, or is no longer, permanently incapacitated, he has both a right and a duty to terminate that person’s pension. In doing so he must act in good faith on the information available to him, but no question of onus arises.

In my view, the answer is the same when the AAT seeks to put itself in the position of the Director-General. It must act on the material which is before it but, as I have already pointed out, it is not bound by rules of evidence and may inform itself on any matter in such manner as it thinks appropriate.

It is true that facts may be peculiarly within the knowledge of a party to an issue, and a failure by that party to produce evidence as to those facts may lead to an unfavourable inference being drawn – but it is not helpful to categorise this common-sense approach to evidence as an example of an evidential onus of proof. The same may be said of a case where a good deal of evidence pointing in one direction is before the Tribunal, and any intelligent observer could see that unless contrary material comes to light that is the way the decision is likely to go. Putting such cases to one side there can be no evidential onus of proof in proceedings before the AAT unless the relevant legislation provides for it, and in the present case the Social Security Act 1947 (Cth) does not.

If the AAT finds itself in a state of uncertainty after considering all the available material, unable to decide a question of fact either way on the balance of probabilities, it will be necessary for it to analyse carefully the decision it is reviewing. If, for example, it is a decision whether or not to cancel a pension in the light of changed circumstances, then it has failed to achieve the statutory requirement of reaching a state of mind that the pension should be cancelled. If, on the other hand, it is a decision, to be made in the light of fresh evidence, whether or not the pension should ever have been granted in the first place, then it has failed to be satisfied that the person ever was permanently incapacitated for work. For a comparable analysis as to the onus of proof (properly so-called) before a judicial tribunal see Phillips v The Commonwealth (1964) 110 CLR 347 at 350.

The present case falls within the former category – there was some evidence of improvement in the applicant’s medical condition – and the Director-General purported to act under s.46(1) of the Act. Therefore a state of indecision of the AAT (if it had existed) should have been resolved in the applicant’s favour. But, as I have said, I would prefer not to refer to the concept of onus of proof in arriving at this result. It is rather a question of a proper interpretation of the Social Security Act 1947 (Cth).” (Emphasis added.)

33                  Jenkinson J said at 369:

“There is… in my opinion a dilemma in which either a court or an administrative authority determining rights or liabilities might find itself, for the resolution of which the same principles are applicable by each tribunal. Either tribunal may find itself unpersuaded either that a circumstance exists or that it does not exist. (The same may be said of a past or a future circumstance). The court or the administrative authority will determine, by reference to the substantive law, whether it is the existence or the non-existence of the circumstance which is determinative of the question for decision. In this case the AAT would determine whether the Social Security Act 1947 (Cth), upon its proper construction, required that the applicant’s pension be cancelled if she were found not to be permanently incapacitated for work, or required that the pension be cancelled unless she were found to be permanently incapacitated for work. In the former case the Tribunal’s lack of persuasion that permanent incapacity did not exist would preclude cancellation. In the latter case the Tribunal’s lack of persuasion that permanent incapacity did exist would result in cancellation. An application of the same principles by a court in resolution of the same dilemma is to be found in Maher-Smith v Gaw [1969] V.R. 371. In a court the principles are expressed in terms of the onus or burden of proof. When those principles are applied in an administrative tribunal, there may be risk of misconception if the curial modes of expression are employed.

In this case the passage from the reasons for the Tribunal’s decision which Woodward J. has quoted implies that it was a requirement of the Social Security Act 1947 (Cth) that the applicant’s pension be cancelled unless she were found to be permanently incapacitated for work, whereas my conclusion is that it was a requirement of that Act that the pension be cancelled if she were found not to be permanently incapacitated for work. If my conclusion be correct, error of law is demonstrated in the Tribunal’s reasons. The error could not have vitiated the Tribunal’s decision unless the Tribunal was unpersuaded, on a balance of probability, that there was not a permanent incapacity. All that can be discerned from the Tribunal’s reasons is that it was unpersuaded, to the degree suggested by the expression ‘a settled expectation’, that there was a permanent incapacity. I agree therefore the appeal should be allowed, that the decision should be set aside, and the case should be remitted to the Tribunal for determination according to law.” (Emphasis added.)

34                  The view of Jenkinson J in McDonald was that the Tribunal considered that the applicant's pension should be cancelled unless she were found to be permanently incapacitated for work, whereas the requirement of the Act was that the pension should be cancelled if she was found not to be permanently incapacitated for work. This difference in approach, his Honour concluded, involved an error of law.

35                  In my view, in this case the words of the Minister's decision indicate that he was unpersuaded that Mrs Ross’ visa should not be cancelled. In my opinion, on its proper construction, s 501(2) of the Act does not permit the Minister to cancel Ms Ross’s visa on the basis of that lack of persuasion.

36                  For these reasons, I made the orders of 9 November 2000 earlier set out.

Associate:

Dated: 21 November 2000