FEDERAL COURT OF AUSTRALIA

Madafferi v Minister for Immigration & Multicultural Affairs [2001] FCA 581

IMMIGRATION – Spouse visa – Decision of the AAT – Decision of the Minister for Immigration & Multicultural Affairs – Whether Minister’s decision involved an error of law – Whether the Minister observed procedures required by the Migration Act 1958 (Cth) – Whether Minister’s decision involved an improper exercise of power – Whether the Minister’s decision involved actual bias – Whether the Minister’s decision was based on no evidence

Migration Act 1958 (Cth) Pt 8, ss 499, 501, 501A

Judiciary Act 1903 (Cth)

Migration Regulations 1993 (Cth) Sched 4

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

Lau v Minister for Immigration and Multicultural Affairs [2000] FCA 698 at [29]applied

Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514 at [10] and [34]discussed

Damanik v Minister for Immigration and Multicultural Affairs [2000] FCA 771 at [10] followed

Tuli v Minister for Immigration and Multicultural Affairs [1999] FCA 271, 94 FCR 526 at [277] followed

Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 at [38] applied

Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 applied

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 applied

FRANCESCO MADAFFERI v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V839 OF 2000

MARSHALL J

MELBOURNE

18 MAY 2001

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs, including reserved costs.

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

REASONS FOR JUDGMENT

1                     On 26 October 2000, the applicant, Mr Madafferi, made an application for an Order of Review of a decision of the respondent Minister pursuant to Part 8 of the Migration Act 1958 (Cth) (“the Act”) and s 39B(1A)(c) of the Judiciary Act 1903 (Cth). Ultimately, however, Mr Madafferi relied only on Part 8 of the Act. The Minister made the relevant decision on 18 October 2000. In this decision the Minister personally refused an application made by Mr Madafferi in July 1996 for a permanent visa as a spouse of an Australian citizen. The applicant filed an amended application adding further grounds of review on 7 March 2001.

Factual background

2                     Mr Madafferi was born on 10 January 1961 in the Republic of Italy and is an Italian citizen. He first entered Australia on 17 November 1977 on a visitor entry permit valid for three months. He stayed for twelve months, leaving Australia on 30 November 1978.

3                     Mr Madafferi entered Australia for a second time on 21 October 1989 on a visitor entry permit valid for six months. He overstayed his visa and has remained thereafter in Australia. He married an Australian citizen on 26 August 1990. He and his wife have three children under ten years of age and Mrs Madafferi is pregnant with their fourth child. On 5 July 1996, officials of the Minister’s Department arrested Mr Madafferi for overstaying his visa. Mr Madafferi was released from custody after his brother paid a $10,000.00 surety. On 12 July 1996, Mr Madafferi applied for a spouse visa in order to remain in Australia.

4                     By letter dated 3 June 1997, the Minister’s Department advised Mr Madafferi that his application for a spouse visa had been rejected. Mr Madafferi was advised that he failed to satisfy Public Interest criterion 4001(2) of Schedule 4 to the Migration Regulations (1993) because a delegate of the Minister was not satisfied that Mr Madafferi was of good character within the meaning of s501 of the Act.

5                     On 17 June 1997, Mr Madafferi applied to the Administrative Appeals Tribunal (“AAT”) for a review of the delegate’s decision. Due to various reasons that are not material to this proceeding, the AAT did not determine the review until 7 June 2000.

6                     On 7 June 2000, the AAT set aside the delegate’s decision to refuse Mr Madafferi a spouse visa and remitted the matter to the Minister for consideration in accordance with a direction that Mr Madafferi not be refused a spouse visa on character grounds “solely on the basis of information presently available to the [Minister]”.

7                     By letter dated 24 July 2000, a delegate of the Minister gave notice to Mr Madafferi of the Minister’s intention to consider a refusal of a spouse visa under s501A of the Act. On 18 October 2000, the Minister personally decided to refuse Mr Madafferi’s application for a visa. That action was taken in reliance of s501A(2)(a) of the Act.

8                     On 21 December 2000, the Minister provided a statement of reasons for his decision to refuse Mr Madafferi a spouse visa. The Minister’s reasons for decision are central to the current reasons for judgment and have been quoted at large. The Minister’s statement held:

“1.       I, Philip Maxwell Ruddock, Minister for Immigration and Multicultural Affairs exercised my discretion under section 501A(2)(a) of the Migration Act 1958 (‘the Act’),to set aside the decision of the Administrative Appeals Tribunal of 7 June 2000 (‘the original decision’) and made a decision to refuse the permanent visa of Mr Francesco Madafferi on 18 October 2000.

2.         Section 501A(2) of the Act states that:

‘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.’

3.         Before exercising my discretion to set aside the original decision and making a decision to refuse the visa, I had formed a reasonable suspicion, under section 501A(2)(c), that Mr Madafferi did not pass the character test, due to the fact that in 1984 he was convicted of the crime of ‘attempted extortion’ and was sentenced to 24 months imprisonment. I also took account of the fact that Mr Madafferi was convicted on four other occasions in 1980 and 1982, receiving sentences of 22, 30, 8 and 36 months imprisonment, and that he was sentenced in absentia in 1986 and 1993, and as a result, has a current arrest warrant in Italy, where he faces an outstanding sentence of 4 years 8 months and 6 days.

4.         ‘Substantial criminal record’ is defined in subsection 501(7) of the Act. A person has a substantial criminal record for the purposes of section 501(7) if, amongst other things, they have been sentenced to a term of imprisonment of at least 12 months, or have been sentenced to a number of terms of imprisonment totalling at least 24 months, or have been acquitted of an offence due to insanity or unsoundness of mind and have spent time in a facility or institution.  A person with a substantial criminal record does not pass the character test (section 501(6)(a) of the Act).  Furthermore, in dealing with officers of my Department, Mr Madafferi has presented false and misleading information concerning his criminal history.  Accordingly, I found that he was not a person of good character by reason of his general conduct.

5.         In accordance with section 501A(2)(d), Mr Madafferi was unable to satisfy me that he passed the character test pursuant to section 501(6)(a) because he has a substantial criminal record as defined in section 501(7)(c) and because of his general conduct in attempting to mislead Australian immigration authorities. I was not satisfied from the submissions of Mr Madafferi's legal advisers, that his general conduct as a parent and business person outweighs that conduct.

6.         I then considered whether it was in the national interest for Mr Madafferi's visa to be refused.  I took into account the comments provided by Mr Madafferi's legal representatives that there is nothing to suggest that removing Mr Madafferi from Australia would be in the national interest and that Mr Madafferi's input into Australian society has been, and continued to be beneficial.  I also considered Mr Madafferi's criminal background and his past and present general conduct. I noted that the Italian authorities have issued a warrant of arrest for Mr Madafferi and that Mr Madafferi faces an outstanding sentence of 4 years 8 months and 6 days in Italy. I also considered the effect on Australia's 'reputation' and 'good name' in the international community should Mr Madafferi be allowed to remain. On balance, I found that due to the seriousness of Mr Madafferi's convictions and his outstanding warrant of arrest and sentence in Italy, it would be in the national interest to refuse his visa.

7.         In exercising my discretion to refuse Mr Madafferi's permanent visa, I took into account all matters referred to in the document titled ‘Issues For Consideration’ accompanied by a Minute signed by Dario Castello, Assistant Secretary, Border Control Branch dated 13 October 2000, including evidence of Mr Madafferi's criminal history in Italy. I also had regard to comments submitted by Mr Madafferi's legal representatives on 15 August 2000 in response to a notice of intention to consider the possible refusal of his visa under section 501A(2)(a).

8.         I also proceeded in accordance with the Government's view on serious crimes as set out in my General Direction number 17 – ‘Direction Under s 499 Visa Refusal and Cancellation Under section 501 of the Migration Act’ (‘my Direction’). I still consider that my Direction properly indicates how I consider the powers and functions of the kind here under consideration should be exercised. In accordance with this I gave consideration to three primary considerations and other considerations.

9.         I gave primary consideration to the protection of the Australian community, taking into account the seriousness and nature of Mr Madafferi's conduct and the likelihood that the conduct may be repeated.

10.       I noted that Mr Madafferi has been convicted of a number of serious offences involving repeated acts of violence, attempted extortion, illegal possession of narcotics and receiving stolen property. In accordance with my Direction, I consider in particular offences involving violence against the person, drug related offences and attempted extortion to be very serious offences.

11.       I also considered Mr Madafferi's general conduct. I took into account the fact that Mr Madafferi has twice overstayed the validity of his visitor visa and that in his dealings with the Department, Mr Madafferi has repeatedly either denied his criminal record or attempted to provide misleading information with regard to his criminal history.  I noted that the AAT gave no weight to Mr Madafferi overstaying his visa.  I also noted that in relation to Mr Madafferi providing false information to the Department, Deputy President Blow commented that many people in Mr Madafferi's situation would also behave in a similar manner. However, in keeping with the Government's attitude in these matters as outlined in my Direction, I considered Mr Madafferi's conduct to be very serious.

12.       I also considered the likelihood that the conduct may be repeated (including any risk of recidivism). I took into account the fact that the Italian authorities have issued a warrant of arrest which required Mr Madafferi to serve a consolidated sentence of 4 years, 8 months and 6 days imprisonment in respect of various unserved and previously suspended sentences.

13.       I noted that Mr Madafferi has continued to present false or misleading information to the Department and the AAT and that Deputy President Blow acknowledged that Mr Madafferi is still prepared to resort to dishonesty when it suits him.

14.       I took into account the comments submitted on behalf of Mr Madafferi by his legal representatives, including the fact that Mr Madafferi has not been convicted of any offences in Australia. Taking all of the above into consideration, I assessed that there is a low to moderate risk that Mr Madafferi may re-offend.

15.       In giving primary consideration to the protection of the Australian community I also gave consideration to whether the refusal of Mr Madafferi's visa and his removal from Australia would be a deterrent to other non‑citizens. I noted that the case has received public attention, particularly within the Italian-Australian community and found that the refusal of Mr Madafferi's visa could have deterrent value for others with criminal background who contemplate a permanent stay in Australia.  I also found that the refusal would send a strong message to others who contemplate crimes against the Migration Act.  I gave these factors considerable weight.

16.       I also gave primary consideration to the expectations of the Australian community. In accordance with the Government's view expressed in my direction, I considered that the Australian community expects non-citizens to obey Australian laws while in Australia including the migration laws. I took into account that Mr Madafferi has resided in Australia since 1989 and has an Australian citizen wife and three Australian-born children. I also noted that a petition comprising 1343 signatures of members of the general community and the Italian-Australian community was submitted by Mr Madafferi's legal representatives expressing support of Mr Madafferi's application. I assessed that given the seriousness of Mr Madafferi's offences, and the fact that he has an outstanding warrant for his arrest in Italy, the Australian community would expect Mr Madafferi's visa to be refused and Mr Madafferi to be removed from Australia. 

17.       In exercising my discretion to refuse Mr Madafferi's visa I also gave primary consideration to the best interests of his three children, aged four, seven and nine.

18.       I noted that all the children were born in Australia. I also noted that Mr Madafferi's wife, stated that she and the children would remain in Australia if Mr Madafferi was refused a visa. I took into account the psychological report from Ms Syndon Barabash, Consulting Psychologist and Family Therapist, that the family was a close‑knit one and that the children demonstrated an obvious caring for their parents and each other. I also noted that all members of Mr Madafferi's family supported these comments.

19. I considered that while separation from their father may cause the children to suffer, this did not diminish the seriousness of Mr Madafferi’s crimes and general conduct with regard to Australia's migration laws.

20.       While in the normal course it is in the best interests of the child to be brought up in a stable household with both parents, I have balanced this view with the need to protect the Australian community from persons who commit serious offences.

21.       In reaching my decision to refuse Mr Madafferi's visa I also took into account other considerations such as Mr Madafferi's ties to the Australian community. I took into account the fact that Mr Madafferi's wife and children are Australian citizens. I noted that Mr Madafferi also has two brothers and one sister who reside in Australia, with whom he remains in close contact.

22.       I also considered that the refusal of Mr Madafferi's visa may result in him not being able to provide financial assistance to his wife and children in Australia.

23.       I took into account the comments from Ms Barabash, Consulting Psychologist and Family Therapist who noted that Mr Madafferi regrets the shortcomings of his youth and that Mr Madafferi can only be described as someone with a flawed adolescence, who chose to change the patterns of his life. I also gave consideration to Mr Madafferi's recent good conduct including his employment history. I took into account the references attesting to Mr Madafferi's good character from his employees, business associates, friends and relatives. However, I also considered the outstanding warrant for Mr Madafferi's arrest in Italy and the sentence which he has not served, as well as his general conduct with regard to migration matters. On balance, I found that the seriousness of Mr Madafferi's crimes outweighed the hardship that he and his family may suffer should his visa be refused.

24.       I noted that Mr Madafferi's legal representatives pointed out Australia's obligations under the International Covenant on Civil and Political Rights. In particular, I considered Article 23.1 which states that ‘the family is the natural and fundamental group            of society and is entitled to protection by society and the State’, and considered Australia's obligation to ensure the unity the family as one of the considerations. I gave this consideration moderate weight.

25.       In deciding to exercise my discretion to refuse Mr Madafferi permanent residence, I found that the protection of the Australian community, particularly having regard to the nature and seriousness of the offences, and the expectations of the Australian community, outweighed the other relevant considerations referred to above.

26.       As I was not satisfied that Mr Madafferi passed the character test and I considered that refusal was in the national interest, and taking into account all the matters raised in the subsection, I exercised my discretion to set aside the original decision and made a decision to refuse his visa under section 501A(2)(a).’

9                     On 7 March 2001, the Minister provided a further statement in which he elaborated on various aspects of his 21 December 2000 statement. The 7 March 2001 statement was in the following terms:

“1.       I, Philip Maxwell Ruddock, Minister for Immigration and Multicultural Affairs refer to my statement of 21 December 2000 (‘my reasons’) setting out the reasons for my decision of 18 October 2000 to set aside the decision of the Administrative Appeals Tribunal (‘AAT’) dated 7 June 2000 in relation to the applicant and to refuse Francesco Madafferi’s application for a an Extended Eligibility (Temporary) (Class TK) visa and a General (Residence) (Class AS) visa.

2.      I am informed that the Applicant’s Counsel in Federal Court proceeding V839 of 2000 has asked for an elaboration of paragraphs 11, 13, 15 and 23 of my reasons.  I consider that my reasons adequately set out the basis for my decision.  However, in order to respond to the applicant’s request, I make this statement.

Paragraph 11

3.      At paragraph 11 of my reasons I considered aspects of Mr Madafferi's general conduct that I considered to be relevant to the issue of whether I should exercise my discretion under paragraph 501A(2)(a) of the Migration Act 1958  (‘the Act’).  Paragraph 11 of my reason further states:

‘I took into account the fact that Mr Madafferi has twice overstayed the validity of his visitor's visa and that in his dealings with the department Mr Madafferi has repeatedly either denied his criminal record or attempted to provide misleading information with regard to his criminal history.  I noted that the AAT gave no weight to Mr Madafferi overstaying his visa. I also noted that in relation to Mr Madafferi providing false information to the Department, Deputy President Blow commented that many people in Mr Madafferi’s situation would also behave in a similar manner. However in keeping with the Government's attitude in these matters as outlined in my Direction I considered Mr Madafferi’s conduct to be very serious.’

4.      In relation to the reference in paragraph 11 of my reasons to Mr Madafferi twice overstaying the validity of his visitor’s visa, Mr Madafferi entered Australia on 17 November 1977 and was granted an entry permit to remain in Australia for 3 months but did not depart Australia until 30 November 1978. Mr Madafferi again entered Australia as a visitor on 21 October 1989 and was granted an entry permit to remain in Australia for 6 months. Mr Madafferi did not depart Australia and was detained by compliance officers of the Department of Immigration and Multicultural Affairs (‘the Department’) on 5 July 1996.

5.      The reference in paragraph 11 of my reasons to the weight placed by the AAT on Mr Madafferi's conduct in overstaying his visa, is a reference to the fact that Deputy President Blow gave no weight to Mr Madafferi overstaying his visitor entry permit in 1978, because Mr Madafferi was so young.  In relation to Mr Madafferi overstaying his visa in 1989, Deputy President Blow was not satisfied that Mr Madafferi, not being an intelligent man, knew any better. He stated that a prudent man in Mr Madafferi's position would have made enquiries and found out that marrying an Australian citizen did not automatically entitle him to stay in Australia. Deputy President Blow concluded, at best, Mr Madafferi had been imprudent.

6.      As stated in paragraph 11 of my reasons, I found that Mr Madafferi repeatedly either denied his criminal record or attempted to provide misleading information with regard to his criminal history. Mr Madafferi withheld information relating to his past criminality in Italy when interviewed by a Departmental officer on the day he was detained (5 July 1996).

7.      Deputy President Blow's comment, referred to in paragraph 11 of my reasons, to the effect that many people in the applicant's position would behave in a similar manner, is contained in the following passage of the AAT's decision:

‘… Many people in his situation, without the benefit of time to think, would have responded in the same way’.

8.      I found that Mr Madafferi also gave false and misleading information to Departmental officers in connection with his application for permanent residence.  Mr Madafferi signed an application to remain permanently in Australia on 11 July 1996. The application form had been filled out with the assistance of a migration agent.  The application lacked details of Mr Madafferi's past criminality in Italy.

9.      Mr Madafferi was interviewed by a departmental officer in April 1997.  I note that the AAT found that Mr Madafferi lied and attempted to mislead his interviewer by deliberately understating the extent of his past criminal activities.

Paragraph 13

10.  At paragraph 13 of my reasons I stated that:

‘... Mr Madafferi has continued to present false or misleading information to the Department and the AAT and that Deputy President Blow acknowledged that Mr Madafferi is still prepared to resort to dishonesty when it suits him’.

11.  I have already outlined in paragraphs 6, 8 and 9 above the specific instances during which I considered Mr Madafferi continued to present false or misleading information to the Department.  In relation to the reference in paragraph 13 of my reasons to false or misleading information presented to the AAT, I note that Deputy President Blow's acknowledgment that Mr Madafferi is still prepared to resort to dishonesty was in the following terms:

‘… But I believe that his conduct in relation to migration matters, particularly in trying to mislead the interviewer and myself to the extent of his crimes in Italy, shows that he is willing to resort to dishonesty when it suits him.’

‘…[Mr Madafferi] is still prepared to resort to dishonesty when it suits him.’

Paragraph 15

12.  In the last sentence of paragraph 15 of my reasons, I stated:

‘I also found that the refusal would send a strong message to others who contemplate crimes against the Migration Act. I gave these factors considerable weight’.

13.  I was there referring to crimes against the Migration Act such as making a false or misleading statement in connection with entry or stay in Australia. As stated in my Direction, such‑crimes are considered by the Government to be very serious.

14.  As stated above, Mr Madafferi has provided false or misleading information regarding his criminal history to an officer or a person exercising or performing functions under this Act on the day he was detained, in his application for permanent residence and during an interview with a compliance officer in April 1997.

Paragraphs 19 & 23

15.  In paragraph 23 of my reasons I stated that I considered, among other matters listed in that paragraph, Mr Madafferi's general conduct with regard to migration matters. I had previously in my reasons, at paragraphs 11 and 13, set out aspects of Mr Madafferi's general conduct that I considered in making my decision, being that Mr Madafferi overstayed his visa on two occasions and that he had repeatedly either denied his criminal record or attempted to provide misleading information with regard to his criminal history to both the Department and the AAT.

16.  I note that the above comments are also applicable to paragraph 19 of my reasons, which refer to Mr Madafferi’s general conduct with regard to migration laws.”

Section 501A

10                  Section 501A of the Act provides as follows:-

“(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.

Action by Minister—natural justice does not apply

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

(4) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).

Minister's exercise of power

(5)       The power under subsection (2) or (3) may only be exercised by the Minister personally.

(6) The Minister does not have a duty to consider whether to exercise the

power under subsection (2) or (3) in respect of the original decision, whether or not the Minister is requested to do so, or in any other circumstances.

Decision not reviewable under Part 5 or 7

(7) A decision under subsection (2) or (3) is not reviewable under Part 5 or 7.”

Submissions by the applicant

11                  The issues raised by the applicant’s submissions may broadly be categorised under the following headings:

1.      The Minister’s decision involved an error of law.

2.      The Minister’s decision involved an improper exercise of power.

3.      The Minister did not observe procedures required by the Act.

4.      The Minister’s decision involved actual bias.

5.      The Minister’s decision was based on no evidence.

I will deal with these in turn.

error of law

Scope of s501A(2)

12                  Mr Hurley, counsel for Mr Madafferi, contended that the Minister made an error of law in purporting to act under s501A(2) of the Act. Mr Hurley submitted that the Minister was only able to make a decision under that provision where the decision of the AAT was to grant a visa to a person.  In Mr Madafferi’s case, the AAT did not grant a visa but remitted the matter to the Minister for further consideration. Accordingly, it was contended that a necessary precondition to the Minister making a decision under s501A of the Act did not arise.

13                  A materially identical submission was rejected by Lehane J in Lam v Minister for Immigration and Multicultural Affairs [2000] FCA 1226 (“Lam”). At [16] his Honour recited the point that “[p]lainly 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.”

14                  At [25] Lehane J said that:

“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.”

15                  I agree, with respect, with those observations of Lehane J and consider that, properly construed, s501A of the Act permitted the Minister to set aside the decision of the AAT of 7 June 2000 and to decide to refuse Mr Madafferi a spouse visa.

16                  In the alternative, Mr Hurley sought to distinguish Lam on the basis that it concerned a decision of the AAT which remitted a visa application to the Minister for processing of the remaining aspect of the application on the understanding that the character requirements were satisfied.  I do not consider that that factual difference between Lam and this proceeding provides any logical basis for arriving at a different construction of s501A of the Act to that arrived at by Lehane J in Lam.

Construction of the Character Test

17                  Section 501A of the Act provides that the Minister may set aside the original decision if he reasonably suspects that the person does not pass the character test. The character test is referred to in s501(6) of the Act in the following ways:

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

(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.”

18                  Mr Hurley observed that the Minister did not decide that Mr Madafferi failed the character test by reason of Mr Madafferi’s substantial criminal record alone, but by reference to his general conduct.  Mr Hurley submitted that the Minister had misconstrued s501(6)(c) of the Act by failing to distinguish whether he had regard to “either or both” Mr Madafferi’s “past and present criminal conduct” and/or his “past and present general conduct”.

19                  This aspect of Mr Hurley’s submission is without merit. As submitted by counsel for the Minister, Mr Tracey QC and Ms Symon SC, the various limbs of the character test are disjunctive. If any limb of the character test is failed, the character test is failed in full. There is no issue in this proceeding that Mr Madafferi has a substantial criminal record. On that basis alone he fails the character test under s501(6)(a). It is not meaningful, therefore, to submit that the Minister failed to properly construe any other subsection of s501(6).

The National Interest

20                  Section 501A(2)(e) of the Act allows the Minister to set aside the original decision of the AAT if satisfied that refusal of the visa is in the national interest. Mr Hurley took issue with the manner in which the Minister dealt with the question of national interest. However, his submissions in this regard essentially amounted to a quarrel with the way in which the Minister expressed himself in his 21 December 2000 reasons, rather than raising a point of law of any substance.

21                  Mr Hurley also referred to par 8 of the Minister’s 21 December 2000 reasons where the Minister said that he proceeded in accordance with General Direction number 17 (“General Direction no 17”). Mr Hurley submitted that the Minister erred in law by acting in accordance with General Direction no 17. Mr Hurley contended that General Direction no 17 was only relevant to direct the discretion given to the primary decision maker. The applicant’s Contentions of Fact and Law submitted that:

“The consequence of acting ‘in accordance’ with General Direction No 17 was that the respondent never had occasion to focus on the facet of the ‘national interest’ over which he personally had jurisdiction because this question does not arise where the decision-maker proceeds in accordance with the General Direction.”

22                  If General Direction no 17 is utilised by the Minister in a way that fetters his discretion, the effect of such utilisation may, in a particular case, lead to an error of law. See Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514 per Dowsett J (“Aksu”) and Damanik v Minister for Immigration and Multicultural Affairs [2000] FCA 771 at [10], per French J.

23                  However, I do not consider that the Minister treated the matters referred to in General Direction no 17 as exclusively binding the exercise of his discretion. At par 6 of the Minister’s 21 December 2000 reasons, before the Minister considered General Direction no 17 at par 8, the Minister determined that it would be in the national interest to refuse Mr Madafferi a visa. The matters referred to in General Direction no 17 were additionally referred to, but not in a way that bound the Minister to have exclusive regard to those considerations. The Minister had regard to considerations other than those which he described “primary”, such as Mr Madafferi’s general conduct; the low to moderate risk that Mr Madafferi may re-offend; and his ties to the Australian community.

24                  The Minister, in effect, concluded that the nature and seriousness of Mr Madafferi’s offences and the expectations of the Australian community “tipped the balance”, to use the words of the Full Court in Lau v Minister for Immigration and Multicultural Affairs [2000] FCA 698 at [29]. What is clear from the Minister’s decision is that he did not give General Direction no 17 a “rigid operation”. Compare Aksu at [34].

25                  Alternatively, Mr Hurley submitted that General Direction no 17 was invalid because it exceeded the authority given to the Minister to give written directions under s499. Section 499(1) of the Act states:

“The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a)   the performance of those functions; or

(b)   the exercise of those powers.”

            In the applicant’s written submissions it was contended that:

“General Direction No 17 are not ‘about’ the performance or functions or the exercise of powers but purport to direct persons required to make individual judgments as to what conclusion they must reach.”

26                  This submission is rejected. Section 499 gives the Minister a broad discretion to issue directions regarding the functions and powers created under the Act. The purpose of General Direction no 17, as set out in its preamble, is to provide “guidance to decision-makers in making decisions to refuse or cancel a visa under section 501 of the Migration Act 1958”. The formulation of a policy to guide decision-making falls within the discretion created in s499.

27                  It was further submitted under the heading of National Interest that the Minister erred in law under s501A by “not considering ‘separately’ whether the decision of the AAT was such that the national interest required that it be set aside”. In circumstances where the Minister is exercising a discrete and separate power under s501A of the Act, it is unnecessary for him to give such consideration to whether the national interest requires the setting aside of the original AAT decision. Mr Hurley’s submission to the contrary is rejected. I accept Mr Tracey’s submission that s501A of the Act is a “stand alone” provision, conferring a “new jurisdiction” on the Minister.

28                  It is only if the material before the Minister is incapable of supporting a view that refusal of a visa is in the national interest that the Minister’s decision would be open to challenge; see Tuli v Minister for Immigration and Multicultural Affairs [1999] FCA 271 at [227]. In this matter the Minister’s decision was open to him on the material before him.

IMPROPER EXERCISE OF POWER

29                  Mr Hurley contended that the power given by s501A(2) of the Act is for the purpose of advancing the national interest.  He submitted that the Minister, in considering the national interest, improperly had regard to Mr Madafferi’s convictions and custody arrest warrant in Italy. This submission is rejected. The Minister was entitled to have regard to such matters in coming to his decision under s501A of the Act.

30                  It was further submitted on behalf of Mr Madafferi that the Minister acted at the behest of law-enforcement agencies in Australia in coming to his decision.  This submission has no foundation. The Minister’s reasons make no reference to any Australian law enforcement authorities.

31                  The next submission under this heading was that the Minister exercised a discretionary power without reference to the merits.  Allied to this submission was a submission that the Minister did not give consideration to the merits in a real and genuine sense.  Those submissions lack substance.  The latter submission is not open in light of the judgement of the Full Court in Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274, see especially at [38].

Procedures required by the act not observed

32                  Mr Hurley submitted that the Minister, in rejecting the application by Mr Madafferi for a spouse visa, failed to observe procedures in connection with the making of the decision;  see s476(1)(a) of the Act.  In the applicant’s Contentions of Fact and Law at pars 3.4 to 3.11 thereof Mr Hurley set out his contentions with regards to this matter as follows:

“3.4     The Migration Act and Regulations provides [sic] for classes of visas to prescribed [sic] by regulation (s.31 (1)), for regulations to provide that visas of a specified class may be only granted in specified circumstances (s.40; reg 2.04), for applications for a visa to be made as provided in the regulations (s.45; reg 2.07) and for the respondent to consider only a valid application for a visa (ss.46, 47). By reg 2.07 the Migration (1994) Regulations provide that if an application is required for a particular class of visa the application must, inter alia, be in the approved form to be completed by an applicant (reg 2.07(1)(a)). The applicant must complete the form in accordance with any directions on it (reg 2.07(3)). Within Schedule 1 Part 1 Item 1119(1)(b) and Schedule 1 Part 2 clause 1211(1)(b) the applicant was required when making his application for his class 801, 820 spouse visa on 12 July 1996 to use Form 887.

3.5       The applicant submits that on the proper construction of the statutory scheme the procedure contemplated by the Migration Act is that the form required to be used will address, or invite an applicant to address, all the criterion that are prescribed for the class of visa, including sub‑classes, that an applicant may satisfy: ss.31(1), (3), 65(1)(a)(ii) Migration Act.

3.6       The applicant applied for the temporary sub‑class 820 spouse visa as this would authorise the applicant to remain in Australia until the determination of his application for the ‘permanent’ spouse visa in sub‑class 801. Both visa class specify criterion to be satisfied at the time of decision: clause 801.221(2), (3), (4), (5), (6) or (8); clause 820.211(1), (2)‑(9).  Of particular relevance to the applicant was the criterion found in clause 820.211(3) which prescribed the criterion that the applicant for the visa entered Australia before 19 December 1989 and at that time was ‘engaged to be married to an Australia [sic] citizen’ whom the applicant has married; cf clause 801.221(4). The Form 887 completed by the applicant (FM-1) did not refer to this criterion (FM-1 page 2, page 7 questions 17, 18, 19, page 15 question 47, page 21 questions 101, 109).

3.7       The applicant, his wife and members of her family will give evidence that at the time the applicant entered Australia in 1989 he was engaged to be married according to Italian custom to Mrs Madafferi. The evidence of the applicant in his affidavit of 29 November 2000 (paras 19‑24), Mrs Madafferi in her affidavit sworn 29 November 2000, Mrs Madafferi's brother Mr Michael La Verde sworn 28 November 2000 and the affidavit of Mrs Madafferi's father Mr Antonio La Verde sworn 28 November 2000. Because the Form failed to invite the applicant, as a visa applicant, to address the criterion relevant to these circumstances the question of his status as at the moment he arrived in Australia has never been considered.

3.8       The significance of this failure is that the regulations provide that the ‘character test’ found in s.501 Migration Act is not a criterion to be satisfied by a visa applicant who entered Australia before 19 December 1989 engaged to be married to an Australian citizen (whom he thereafter married) either at the time of application nor at the time of decision (clause 820.223(2); clause 801.223(2); Schedule 4 Item 4001).

3.9       The consequence of the failure of the form to properly express the procedures required by the Act were revealed at the time the respondent (or his delegate) came to decide whether the applicant satisfied the matters prescribed in s.65(1)(a) Migration Act. The effect of s.65(1)(a)(ii) was that if the applicant entered Australia in the circumstances referred to in clause 801.220(3) he did not have to satisfy the character test. The respondent contends that by s.65(1)(a)(iii) and s.501H(1) the Act provides that the power under s.501 is in addition to any other to refuse to grant a visa. The applicant contends that the specific provision in s.65(1)(a)(ii) should prevail over the general provision in s.65(1)(a)(iii) and s.501 because otherwise the respondent can, by executive action, suspend the operation of a legislative provision. This would involve the respondent exercising legislative power rather than enforcing the provisions of the Migration Act and regulations. The applicant puts this submission on the alternative basis that the respondent had no jurisdiction to make the decision within s.476(1)(b) of the Migration Act. This ground is pleaded at paragraph 1 A of the application.

3.10     Alternatively, the applicant submits that the failure of the form to conform with the procedure required by the Act meant the Minister erred in law in considering whether refusal of the visa application was ‘in the national interest’ within s.501A(2)(e) Migration Act because he failed to act on the proper construction of the visa class in question which indicated that Parliament had accepted that it was generally in the public interest that certain ‘spouse’ visa applicants were entitled to the grant of a visa independent of whether or not they satisfied the character test.

3.11     The delegates of the respondent appear to have been confused as to the basis upon which they were referring to the character test. The ‘decision record’ (forwarded to the applicant under cover of the respondent's letter of 3 June 1997 (‘FM‑4’)) is at LM Haigh 8 March 2001 LMH-1 folio 213. It records the applicant ‘does not meet public interest criterion 4001’. If, as the applicant contends, he entered Australia engaged to be married to an Australia citizen the officers of the respondent, had the prescribed Form brought the applicant's circumstances to their attention, would have realised they should not have proceeded on this basis. The applicant submits the primary decision was made on the basis the applicant did not satisfy prescribed criteria (s.65(1)(a)(ii) Migration Act) rather than the grant of the visa being ‘prevented’ by s.501 Migration Act within s.65(1)(a)(iii).”

Submission regarding the Jurisdiction of the Respondent

33                  First, it should be noted, Mr Madafferi’s claim that he was engaged to be married when he entered Australia in October 1989 is highly questionable. However, even if this was the case I reject the submission that the Minister was not entitled to act under s501A. As the Court held in Madafferi v MIMA [2001] FCA 47 at [10]:

“Even if it is accepted that Mr Madafferi entered Australia whilst engaged to be married and that he otherwise was able to rely on Reg 820.211(3), the respondent was nonetheless entitled to act in accordance with s501H of the Act and refuse to grant a visa in accordance with s501 of the Act if Mr Madafferi did not pass “the character test” referred to in s501 of the Act. It must be borne in mind that s501H of the Act was enacted after Reg 820.211(3) was made and in terms gives the respondent an additional power to refuse to grant a visa.”

34                  Furthermore, as was submitted on behalf of the Minister, there are numerous other provisions, most notably s65 of the Act which require consideration of character, quite apart from s501 of the Act.

35                  I also do not consider, contrary to Mr Hurley’s contention, that when the Minister made a decision under s501 of the Act he was exercising legislative power. On the contrary, the Minister was exercising an administrative discretion.

Submission regarding the Primary Decision being based on an Error

36                  In response to Mr Hurley’s contention that the primary decision was based on an error, Mr Tracey submitted that while the Minister’s decision was activated by the existence of the AAT decision, beyond that the AAT decision played no role. I agree with that submission.  The Minister is not required to consider whether the decision of his delegate or the decision of the AAT was correct. He looks afresh at the application for the visa by reference to matters referred to in s501A of the Act. Therefore, any errors made by the delegate or the AAT are immaterial. Consequently, it does not matter if the visa application form provided to Mr Madafferi was inappropriately worded or whether Mr Madafferi was in fact engaged to be married before he entered Australia the second time.

ACTUAL BIAS

37                  Mr Hurley contended that the Minister was affected by actual bias in coming to his decision.  Reliance was placed upon par 15 of the Minister’s reasons of 21 December 2000 and especially the Minister’s statement that:

“… [the] refusal of Mr Madafferi’s visa could have deterrent value for others with criminal background who contemplate a permanent stay in Australia.”

38                  It was submitted that part of the Minister’s reasons disclose that he formed the view that no person with a criminal background can ever obtain a visa to permanently stay in Australia. I do not consider that submission fairly or accurately reflects the Minister’s view. The Minister has a clear and obvious discretion as to whether to grant visas to persons who have a criminal background. Mr Madafferi’s criminal background was never in issue and it was open to the Minister to deny Mr Madafferi a visa on this basis. However, it is clear from the Minister’s reasons, which cover a broad range of issues and consider Mr Madafferi’s personal circumstances in detail, the Minister was not just applying a pre-formulated policy regarding persons with criminal backgrounds.

39                  Mr Hurley also relied on statements made by the Minister in 1997 to the effect that any non-citizen who had been in prison for 12 months or more should not be allowed to reside permanently in Australia. In light of the recent High Court judgment Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17, where an identical submission was rejected, reliance can no longer be placed on the Minister’s 1997 statements to support a claim of bias.

NO EVIDENCE OR OTHER MATERIAL

40                  Mr Hurley submitted that the Minister’s decision was based on particular facts that did not exist.  It was alleged that such facts were critical to the making of the decision in circumstances where there was no other evidence or material to justify the making of the decision.

41                  The first of those alleged facts was that the Italian authorities had issued a warrant of arrest for Mr Madafferi under which he faced an outstanding sentence of four years, eight months and six days in Italy. The correct analysis under Italian law was said to be that the outstanding sentences will expire on 19 May 2002, and that when the Minister made his decision the actual outstanding sentence was only one year, eight months and six days.

42                  In response, Mr Tracey submitted that the Minister emphasised the Italian warrant to indicate that it represents “unfinished business” with respect to past events in Italy. I agree. I do not consider the fact that Mr Madafferi faced a shorter sentence than that of four years, eight months and six days would impact upon the Minister’s ultimate decision. The fact remained that he faced a prison sentence if he returned to Italy. An outstanding prison sentence was “other evidence or material” which justified the making of the decision.

43                  Mr Hurley also submitted that there was no evidence for the Minister to conclude that Mr Madafferi had lied about his criminal history. It was contended that Mr Madafferi disclosed his convictions in his application for a spouse visa in 1996. However, there was ample material available to the Minister to show that Mr Madafferi had repeatedly denied his criminal record or attempted to provide misleading information to officers of the Minister’s department.

44                  Mr Hurley next contended that no evidence existed to justify the respondent’s comments on ‘protection of the Australian community’ and on the ‘public attention’ Mr Madafferi’s case had received by the Italian-Australian community. Neither of these submissions holds any substance. What is considered necessary to protect the Australian community will largely depend on value judgments. Even though the Minister found there was only a “low to moderate risk that Mr Madafferi may re-offend”, it was open to the Minister, after having regard to the “nature and seriousness” of Mr Madafferi’s offences, to consider that protection of the Australian community was a relevant factor in coming to his conclusion. Nor can it be denied that Mr Madafferi’s case has come to the attention of the Italian-Australian community, and indeed the Australian community at large, following substantial press coverage of his circumstances after the AAT decision.

45                  Mr Hurley further submitted that there was no evidence that Mr Madafferi had committed “crimes against the Migration Act”. In the Minister’s statement of 21 December 2001, the Minister wrote at par 15:

“I…found that the refusal would send a strong message to others who contemplate crimes against the Migration Act.”

46                  In the Minister’s 7 March 2001 reasons he referred to par 15 of the previous statement and said that he was referring to crimes such as “making a false or misleading statement in connection with entry or stay in Australia.” So explained there can be no valid quarrel with the Minister’s entitlement to have regard to the matter referred to in the last sentence in par 15 of his 21 December 2000 reasons.

47                  The remaining submission deserving of mention concerns the Minister’s comment in par 19 of the Minister’s 21 December 2000 reasons where he held that he considered that “separation from their father may cause the [Madafferi] children to suffer”. Mr Hurley submitted that the Minister had no evidence on which to conclude that Mr Madafferi’s children may suffer if Mr Madafferi was returned to Italy. Rather it was submitted “the consequent suffering to the wife and children was a matter of certainty”(emphasis added).

48                  That submission amounts to a quibble with the Minister’s use of language and is rejected. It is not a basis on which the Minister’s decision may be set aside on the no evidence ground. As was said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 by their Honours, Brennan CJ, Toohey, McHugh and Gummow JJ at 272:

“… 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. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin [(1990) 170 CLR 1 at 35-36]:

‘The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.’”

49                  In the current instance, the Minister was essentially doing no more than acknowledging that Mr Madafferi’s failure to obtain a visa may, in all likelihood, result in his removal from his children. The Minister could not be certain about such a matter given that he had no way of knowing for certain whether Mr Madafferi’s family would follow the applicant to Italy.

ORDER

50                  Having regard to the foregoing the Court will make the following order:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs, including reserved costs.

Associate:

Dated:              18 May 2001