FEDERAL COURT OF AUSTRALIA

Andary v Minister for Immigration & Multicultural Affairs [2001] FCA 1544

IMMIGRATION – cancellation of visa for failure to pass the character test – whether Minister’s Direction No 17 inconsistent with s 501 of the Migration Act 1958 (Cth) – whether the Minister voluntarily applied Direction No 17 in cancelling the visa – whether the Direction fetters the Minister’s discretion

IMMIGRATION – entry permits – whether entry permit is a visa for the purposes of the Migration Act 1958 (Cth) s 501 – whether the applicant was holder of an entry permit – whether to be treated as holding a visa

Migration Act 1958 (Cth), ss 202, 203, 499, 501(2), 501(6)(a), 501(7), 501F

Migration Act 1958 (Cth) (No 62 of 1958), ss 5(1), 6(1), 6(6), 6(8), 9(1)

Migration Reform Act 1992 (Cth), s 40(5)

Migration Reform (Transitional Provisions) Regulations, reg 3, reg 4

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, applied

Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514, followed

Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648, followed

Turini v Minister for Immigration and Multicultural Affairs [2001] FCA 822, not followed

Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCA 897, followed

Javillonar v Minister for Immigration and Multicultural Affairs [2001] FCA 854, distinguished

GEORGE ANTHONY ANDARY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Q 123 OF 2001

DOWSETT J

2 NOVEMBER 2001

BRISBANE

THE COURT ORDERS THAT:

1.         The decision be set aside.

2.         The matter be remitted to the Minister for further consideration.

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

REASONS FOR JUDGMENT

Background

1                     The applicant seeks review of the Minister’s decision of 10 May 2001 to cancel his transitional (permanent) visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (the “Act”).  The decision appears to have been based upon the content of a departmental briefing paper.

2                     The applicant was born in 1963 in Lebanon.  In 1964 his father came to Australia, with the intention of bring his family over later.  Under the Act as then in force, the legal status of immigrants was governed by s 6(1) which provided:

An immigrant who, not being the holder of an entry permit that is in force, enters Australia thereupon becomes a prohibited immigrant.

3                     Section 6(8) provided:

A child under the age of sixteen years who enters Australia in the company of, and whose name is included in the passport of, or any other document of identity of, a parent of the child shall be deemed to be included in any entry permit granted to that parent before the entry of that parent and written on that passport or other document of identity, unless the contrary is stated in the entry permit.

4                     The applicant and his three siblings entered Australia on his mother’s passport on 16 October 1967.  She had received a migrant visa which entitled her to an indefinite entry permit on arrival in Australia.  The applicant is the youngest of four children.  He was educated in Australia and left school in 1979.  He worked for four years in Brisbane before being retrenched.  In 1974 he moved to Cairns.  He has spent most of his formative years in this country, does not speak Arabic fluently and has not returned to Lebanon since his arrival in Australia.  On 13 September 2000 the applicant was informed that the Minister intended to examine whether there were grounds to cancel his visa under s 501 of the Act.  On 10 May 2001 the applicant was notified that his visa had been cancelled pursuant to subs 501(2) of the Act which 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.

5                     Subsection 501(6)(a) provides that a person does not pass the character test if:

The person has a substantial criminal record (as defined by subsection (7)) … .

6                     Subsection 501(7) provides:

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.

7                     It is common ground that the applicant failed to pass the character test by reason of the fact that he had a substantial criminal record within the meaning of par 501(7)(c).

Grounds of review

8                     The applicant advanced numerous arguments in support of his case.  They can be dealt with under four main headings, namely:

–                 procedural defects;

–                 want of jurisdiction;

–                 improper exercise; and

–                 direction 17.

Procedural defects

9                     The arguments under this heading were attempts to resuscitate the views of the majority of the Full Court, reversed on appeal by the High Court, in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611.  It is not necessary to give any further consideration to them.

Want of jurisdiction

10                  The applicant contended that he was not the holder of an entry permit immediately before 1 September 1994 and therefore could not have held a transitional (permanent) visa capable of being cancelled.  He asserted some unspecified right to remain in this country because of his status prior to the commencement of the current legislative regime, which right allegedly survived its enactment.  As previously demonstrated, the applicant entered Australia on his mother’s passport and was deemed to be included in her entry permit.  However she left Australia in 1974, returning in October of that year.  She was granted an entry permit on return to Australia.  The applicant submitted that his entry permit (which he held by virtue of his having entered the country with his mother) had therefore lapsed.

11                  At the relevant time, subs (9)(1) of the Act provided:

Where an immigrant who is the holder of an entry permit leaves Australia, the entry permit has no force or effect in relation to him upon or after his re-entry into Australia.

12                  Section 5(1) defined the term “the holder” in relation to an entry permit to mean:

the person to whom the entry permit was granted or a person who is deemed to be included in the entry permit … (emphasis added).

13                  As previously demonstrated, the applicant was deemed to be included in his mother’s entry permit, of which he was therefore a holder.  When she left the country (or perhaps, when she re-entered), subs 9(1) operated to cancel that entry permit in relation to her, but not in relation to the applicant.

14                  Subsection 40(5) of the Migration Reform Act 1992 (Cth) provides:

The regulations may provide that, from 1 November 1993, visas or permits in a specified Principal Act class and held by specified persons immediately before that date are to continue in force as visas in a specified amended Act class.

15                  The Act was later amended, substituting for the date 1 November 1993, the date 1 September 1994.  Subsequently the Migration Reform (Transitional Provisions) Regulations were adopted.  Regulation 4 provides:

Subject to regulation 5, if, immediately before 1 September 1994, a non-citizen was in Australia as the holder of a permanent entry permit, that entry permit continues in effect on and after 1 September 1994 as a transitional (permanent) visa that permits the holder to remain indefinitely in Australia.

16                  The term “permanent entry permit” is defined in reg 3 to mean:

an entry permit the effect of which is not subject to a limit as to time but does not include an entry visa that is operating as an entry permit ... .

17                  Pursuant to subs 6(6) of the Act as it was when the applicant entered Australia:

An entry permit that is intended to operate as a temporary entry permit shall be expressed to authorise the person to whom it relates to remain in Australia for a specified period only, and such a permit may be granted subject to conditions.

18                  It seems reasonable to assume that as the applicant’s “indefinite” permit (which did not specify a time limit) was not temporary, it was therefore, in effect, permanent.  No contrary argument was advanced.  In those circumstances there was, at the time of the Minister’s decision, a visa amenable to cancellation.  There was some suggestion that the applicant may have held an absorbed person’s visa.  Even if that were the case, it is clear that he also held a transitional (permanent) visa which has been cancelled.  Pursuant to s 501F any other visa held by the applicant was also cancelled.  There is no substance in the challenge to jurisdiction.

Improper exercise

19                  It was argued that the Minister’s decision was an improper exercise of the power conferred by the Act.  This argument was based on a number of different approaches.  The first related to a direction issued by the Minister (“direction 17”).  I will deal with that matter separately.  The second related to the interests of the applicant’s children and the United Nations Convention on the Rights of the Child.  At the time of the decision, the applicant had one child and one stepchild.  His wife was expecting another child.  Assuming that there was an obligation to give consideration to the interests of his children, this was done.  It may be that the applicant would have preferred that more weight was given to this factor than was the case, but that is not a ground for review.  It seems that the applicant’s wife is of Aboriginal extraction.  Their children obviously share that ethnic background.  There was some suggestion that this fact was of special significance although neither the applicant nor his wife appears to have raised it in their written submissions.  The briefing paper refers to cultural and language difficulties likely to be encountered by the children in the event that they leave Australia with the applicant.  Although the Aboriginal background of the children was not specifically mentioned in the briefing paper, that is no basis for upsetting the decision.

20                  Thirdly, it was submitted that the procedure prescribed by s 201 for deporting non-citizens who have been in the country for less than ten years demonstrates that persons resident here for more than ten years “ought to be protected from removal unless on specified security (s 202) or other grounds (s 203).”  In other words, s 501 should be read down to avoid an alleged “overlap” with ss 202 and 203.  However s 501 clearly deals with the cancellation of visas, which is the issue with which I am presently concerned.  Sections 202 and 203 deal with deportation.  I see no substance in this argument.

21                  Other matters raised under this heading included:

–                 the extent to which the Minister had enquired as to the relative seriousness of the applicant’s relevant misconduct;

–                 the weight given to the risk of recidivism;

–                 relevance of deterrence; and

–                 community expectations.

22                  With the exception of the argument concerning deterrence, these matters all go to the merits and form no part of the review process prescribed by the Act.  It was argued that deterrence is not a relevant consideration in exercising the discretion conferred by s 501.  I consider that one of the purposes of s 501 is the discouragement of criminal misconduct by non-citizens.  There is nothing in this argument.

Direction 17

23                  Direction 17 was issued by the Minister on 16 June 1999 to provide “guidance to decision-makers in making decisions to refuse or cancel a visa” under s 501 of the Act.  It was issued pursuant to s 499 which provides:

(1)        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.

(1A)     For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.

(2)               Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

(2A)     A person or body must comply with a direction under subsection (1).

(3)               The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.

(4)               Subsection (1) does not limit subsection 496(1A).

24                  Part 1 of the direction concerns the application of the character test as contemplated by s 501.  It is not necessary to say any more about that for present purposes.  In the event that a non-citizen does not pass the character test, the Minister may decide that such person should not be permitted to enter or remain in Australia.  Paragraph 2.2 of the direction provides:

The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa.  In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations.  The primary considerations are set out in paragraphs 2.3-2.16 and other considerations are set out at paragraphs 2.17-2.23.  Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa.  Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

25                  Paragraph 2.3 identifies the three primary considerations as:

–                 The protection of the Australian community and members of the community;

–                 The expectations of the Australian community; and

–                 In all cases involving a parental relationship between a child or children and a person under consideration, the best interests of the child or children.

26                  Each of the three considerations is then discussed in some detail.  Paragraph 2.17 provides:

When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant.  It is the Government’s view that where relevant, it is appropriate that these matters be taken into account but that they be given less individual weight than that given to the primary considerations.

A list of such considerations follows.

27                  The direction has received a significant amount of consideration in recent months.  In Aksu v Minister for Immigration and Multicultural Affairs [2001] FCR 514 I considered a decision by the Minister based on a departmental briefing paper which he had adopted as his reasons for the decision.  The relevant departmental officer had advised the Minister that direction 17 was binding upon him.  I considered that it was inconsistent with s 501 to the extent that it fettered the discretion conferred by that section.  Whatever its effect with respect to the exercise of a discretion conferred upon an official by any delegation pursuant to the Act, it is clear that the Minister cannot fetter his own discretion in exercising the powers conferred by s 501.  Because the Minister had adopted the advice given to him (including the advice that the direction was binding upon him) it followed that the decision was infected by that unlawful fetter and so was liable to be set aside.  In Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648 Cooper J took a similar view.  In Turini v Minister for Immigration and Multicultural Affairs [2001] FCA 822 Whitlam J expressed a contrary opinion.  In Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCA 897 Drummond J adopted much of the reasoning in Aksu but disagreed with one aspect of it.  In Javillonar v Minister for Immigration and Multicultural Affairs [2001] FCA 854, Stone J considered Aksu and Ruhl, but distinguished them on their facts.  Nonetheless, her Honour appears to have approved the reasoning in those decisions.

28                  While I see no reason to depart from the views which I expressed in Aksu,the present case differs from that case in that the official who prepared the briefing paper (upon which the Minister acted), did not advise him that direction 17 was binding upon him.  Paragraph 5 is as follows:

If you are satisfied that Mr ANDARY does not pass the character test you must consider the exercise of your discretion to decide whether Mr ANDARY should be permitted to remain in Australia.  In exercising your discretion you should consider the guidelines of your Direction No. 17 made under s 499 of the Migration Act 1958.  While you are not bound by the s 499 direction on character in relation to exercising your discretion, it is a useful guide for the matters that you should consider and contains three primary considerations and a number of other relevant considerations that need to be addressed.

29                  Thereafter the briefing document follows closely the structure of direction 17, stressing the importance of deterrence and the expectations of the Australian community, referring particularly to pars 2.11 and 2.12 of the direction in connection with these aspects.  In par 7, the “Government’s view” as revealed in par 2.6 of the direction is set out, and at par 9, par 2.7 appears, again disclosing the “Government’s view”.  Paragraph 2.11 of the direction is set out in par 16 of the briefing paper, and par 2.12 appears in par 18.  Paragraph 19 is as follows:

The offences committed by Mr ANDARY are considered by the Government to be very serious.  The Australian community expects non-citizens to obey Australian laws while in Australia and therefore it is open for you to find that the character concerns or offence are such that the Australian community may expect that Mr ANDARY should be removed from Australia.

A copy of Mr ANDARY’s criminal history is at Annex B.

30                  There is also detailed reference to factors specified in the direction as concerning the welfare of children.  Paragraph 33 concludes that:

It is open to you to find from the information given that the cancellation of Mr Andary’s visa and his removal from Australia would have a detrimental effect on his children.

31                  As I have said, I see no basis for criticism of the way in which the briefing paper deals with the interests of the children.

32                  Under the heading “Other Considerations”, par 34 recites that:

Paragraph 2.17 of the Minister’s Direction provides that other considerations may be taken into account by the decision-maker.  It is the Government’s view that where relevant, it is appropriate that these matters be taken into account but that they be given less individual weight than that given to the primary considerations.

33                  There follows a discussion of various matters advanced by the applicant and other persons.  Paragraph 44, under the heading “Any Other Relevant Considerations”, states:

All matters raised have been addressed in line with the Direction.

34                  Paragraph 45 under the heading “Other Matters Raised By/On Behalf of Mr Andary”, states:

All matters raised have been addressed in line with the Direction.

35                  On p 20 of the briefing paper under the heading “Minister’s Decision on Cancellation Under Section 501(2)”, par 47 recites:

I have considered all relevant matters including (1) an assessment of the Character Test as defined by s 501(6) of the Migration Act 1958, (2) the Minister’s Direction under s 499 of that Act and the non-citizen’s comments (if any), and have decided that:

Please delete whichever is NOT applicable:

(a)       I am satisfied that George Anthony ANDARY passes the character test

            OR

(b)       I reasonably suspect George Anthony ANDARY does not pass the character test and George Anthony ANDARY has not satisfied me that he passes the character test BUT I have decided NOT to exercise my discretion under subsection 501(2) of the Act to cancel the visa

            OR

(c)        I reasonably suspect George Anthony ANDARY does not pass the character test and George Anthony ANDARY has not satisfied me that he passes the character test BUT I have decided NOT to exercise my discretion under subsection 501(2) of the Act to cancel the visa BUT George Anthony ANDARY is to be WARNED that a fresh assessment will be made with a view to consider cancelling his visa if he is convicted of any further offences;

            OR

(d)       I reasonably suspect George Anthony ANDARY does not pass the character test and George Anthony ANDARY has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA so I hereby cancel the visa.

Philip Ruddock

Minister for Immigration and Multicultural Affairs

Date:  5.5.01

36                  Paragraphs (a) (b) and (c) have been deleted, presumably by the Minister.

37                  The framework of the briefing paper appears to be similar to that considered by Cooper J in Ruhl, but different from that considered by Stone J in Javillonar.  The briefing paper considered by Drummond J in Jahnke may not have been as detailed in its references to the direction as those generated in the present case and in Ruhl, but nonetheless, it made numerous references to it and included a paragraph similar to par 5 (set out above).

38                  In Ruhl, Cooper J concluded, as a matter of fact, that the Minister had:

voluntarily applied the provisions of Direction No 17 to the exercise of his discretion under s 501 of the Act when he adopted as his own the reasoning contained in the decision record … . 

39                  It is difficult to avoid the conclusion that the Minister also did so in the present case.  He adopted the reasoning advanced in the briefing paper which was itself based upon direction 17.  The facts of the case were considered following the structure prescribed in the direction, with particular emphasis upon the primary considerations.  As to “other considerations”, the briefing paper refers to the Government’s view as to the relative weight of such matters (less individual weight than that given to the primary considerations) and then sets out the various matters referred to in the material put before the Minister by the applicant and by those supporting him.  It is significant that pars 44 and 45 indicate that other relevant considerations and matters raised by or on behalf of the applicant have been “addressed in line with the Direction”.  There can be little doubt that the Minister has voluntarily applied the approach prescribed in direction 17 to his consideration of the present case.  As I observed in Aksu the prescription of the relative weights to be attributed to classes of relevant considerations effectively prevents an unfettered assessment of the case. Whilst the Minister would inevitably attribute appropriate weight to relevant considerations according to his own perceptions of the case, it was not permissible simply to adopt the relative weights prescribed by direction 17.

40                  In Ruhl, Cooper J referred to the following observations made by Brennan J in Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640-641:

Of course, a policy must be consistent with the statute.  It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created.  A policy which contravenes these criteria would be inconsistent with the statute (see Murphyores Incorporated Ltd v The Commonwealth (1976) 136 CLR 1; Drake’s case, supra, at 589, and the cases there cited).  Also, it would be inconsistent with ss 12 and 13 of the Migration Act if the Minister’s policy sought to preclude consideration of relevant arguments running counter to an adopted policy which might be reasonably advanced in particular cases.  The discretions reposed in the Minister by these sections cannot be exercised according to broad and binding rules (as some discretions may be: see, eg, Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149).  The Minister must decide each of the cases under ss 12 and 13 on its merits.  His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases.  A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative.  A Minister’s policy, formed for the purposes of ss 12 and 13 of the Migration Act, must leave him free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the Minister will make in the circumstances of a given case.

That is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the Minister usually applies.  There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion intact while guiding the exercise of the power.  …

41                  There can be little doubt that the discretion reposed in the Minister by s 501 is not to be exercised “according to broad and binding rules”.  Each case must be decided on its merits.  The discretion must not be so truncated by a policy as to preclude consideration of the merits.

42                  In summary I can do little better than quote from par 39 of the reasons of Cooper J in Ruhl as follows:

In the present case as appears from the decision record and the Minister’s correspondence, the Minister has not merely chosen to place more weight upon the primary considerations than upon the other matters having regard to the facts of the case.  He has accorded pre-eminence to the primary considerations and denied the possibility that the other matters particular to the circumstances of the applicant were entitled to greater importance than a primary consideration in the exercise of an unfettered discretion under s 501 of the Act.  He has adopted this course because he applied the policy contained in Direction No 17 which directed such an approach to the exercise of the discretion. 

43                  I should also refer to par 14 in the reasons of Drummond J in Jahnke.  His Honour said:

(The Minister) stated, in endorsing the memorandum with his decision to cancel the visa, that he had considered “all relevant matters” (a statement apt to refer to his officer’s comments in the memorandum …) and “Direction No 17”.  That is an indication that the Minister, in arriving at his ultimate decision, considered the matters identified in the memorandum and evaluated them in accordance with the Direction.  There is no indication to the contrary in the material before the Court.  It is open to the Minister, if he wishes, to file affidavit evidence in this Court explaining how he arrived at his conclusion.  He has not done that.  In this state of the evidence before the Court, I therefore infer that, in making his decision to cancel the visa, the Minister adopted the approach to weighting, in balancing the primary and other considerations, that was set out in pars 2.2 and 2.17 of the Direction and recommended to him in … the memorandum.

44                  Of course these observations are necessarily peculiar to the cases in question.  Nonetheless, the parallels between those cases and the present are irresistible.  I adopt those observations as expressing my own views.

45                  The decision of Stone J in Javillonar offers an instructive contrast.  In that case the officer responsible for preparing the briefing paper had advised:

If you are satisfied that the non-citizen does not pass the character test you must consider the exercise of your discretion to decide whether the non-citizen should be permitted to remain in Australia.

46                  This is similar to the first part of par 5 in the present briefing paper, but the following part (dealing with direction 17) did not appear in the Javillonar document.  Stone J observed:

The present brief does not specify, either directly or indirectly, the relative weight to be attributed to the various factors it considers.  Its adoption by the Minister as his reasons does not reveal the weight that he attributed to those factors.  Nor is there any obligation on the Minister to provide that information.

47                  At par 52 her Honour continued:

In the absence of any indication of the weight attributed to the factors relevant to Mr Javillonar’s case, I am unable to conclude that the Minister did not give the necessary independent consideration to the relevant factors and therefore the ground of review … is not made out.

48                  The reason for the outcome in Javillonar being different from those in Ruhl and Jahnke appears clearly from these observations.

49                  As Drummond J pointed out in Jahnke, not every reviewable error will lead to the setting aside of the relevant decision.  It is necessary to consider whether the result may have been affected by the error.  The applicant has been in this country since he was four years of age, a period of some thirty-four years.  He has no ties with Lebanon.  His criminal record is substantial, but it is hard to avoid the conclusion that whatever this man is, he is the product of an Australian upbringing.  The exercise required of the Minister was a difficult one, requiring a careful balancing of community interests and views (which may themselves not be unanimously shared) against the interests and reasonable expectations of a long-term resident, his family and friends.  The direction is designed, in my view, to skew the approach taken by the decision-maker away from a consideration of that difficult balancing exercise by creating a presumption in favour of revocation of the visa.  I have given my reasons for this view in Aksu.  To follow the direction will almost inevitably lead to a failure to address the proper question.  Although the Minister, approaching the issue unfettered by the direction, might yet come to the conclusion that the applicant’s visa should be withdrawn, I am by no means confident that such would be the inevitable result.  In those circumstances the decision should be set aside and the matter remitted to the Minister for further consideration.  I will hear submissions as to costs.

Associate:

Dated:              2 November 2001