FEDERAL COURT OF AUSTRALIA

Andary v Minister for Immigration & Multicultural Affairs [2002] FCA 1380

MIGRATION – application for order of review – where transitional (permanent) visa cancelled pursuant s 501(2) Migration Act 1958 (Cth)  – whether Minister had jurisdiction to make decision – whether there existed a visa to cancel – where applicant entered Australia as infant on mothers visa – where mother left Australia and granted another entry permit on return - whether reg 4 of Migration Reform (Transitional Provisions) Regulations operates retrospectively - whether father of applicant British subject – whether absorption into community provides basis for citizenship – whether decision induced or affected by actual bias – whether any evidence of absence of good faith or of Minister ignoring or intending to ignore his obligations – where Minister disclosed opinion about judges of the court in context of migration decisions – Whether decision unreasonable in legal sense

PROCEDURE – whether leave to amend application to add ground ought to be granted – whether applicants argument in relation to further ground of appeal has merit

Statutes

Australian Citizenship Act ss 7, 15(5), 14(9)

British Nationality Act 1948 (U.K.)

Judiciary Act 1903 (Cth) s 78B

Migration Act 1958 (Cth) ss 501, 9, 5, 34, 13, 14, 4(2), 15, 198, 474

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

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

Nationality and Citizenship Act 1948 (Cth)

Royal Style and Titles Act 1973 (Cth)

Cases

Associated Provincial Pictures Houses Limited v Wednesbury Corporation [1948] 1 KB 223 Cited

Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Ors (1986) 162 CLR 24 Refd to

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

Minister for Immigration and Multicultural Affairs v Jia [2001] 205 CLR 507 Cited

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 228 Refd to

Pochi v Macphee & Anor (1982) 151 CLR 101 Discussed

R v Hickman& Ors ;  Ex parte Fox & Anor (1945) 70 CLR 598 Cited

Re Patterson Ex parte Taylor (2001) 182 ALR 657 Cited;  Discussed

Salemi v Mackellar [No 2] (1977) 137 CLR 396 Cited

Other Authorities

Blackstone’s Commentaries, Book 1, Ch 10, 369

Pollock & Maitland, ‘History of English Law” Book II, 460-461

GEORGE ANTHONY ANDARY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Q119 of 2002

KIEFEL J

6 NOVEMBER 2002

BRISBANE

THE COURT ORDERS THAT:

1.         Leave to amend the application is refused.

2.         The application is dismissed.

3.         The applicant is to pay the respondent’s costs of the proceedings.

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

REASONS FOR JUDGMENT

1                     The applicant was born in Lebanon in 1963.  In 1964 his father came to Australia, and in 1967 the applicant and his siblings came to Australia with his mother.  She had a migrant visa entitling her to an indefinite entry permit on arrival in Australia.  The applicant has remained in Australia since that time and has not returned to Lebanon.  He does not speak Arabic fluently.  The other members of his family are now citizens of Australia and he has a partner and young children.  The applicant’s father was granted citizenship in 1969. The applicant was not included, as a child, on that certificate.  I was told that the applicant’s mother applied for, and was granted, citizenship in 1985.  The applicant was himself eligible to apply for citizenship in 1981.  He did apply at some time, but after he had been convicted of criminal offences, I was informed.  His application was refused.

2                     On 10 May 2001, the applicant was notified that his transitional (permanent) visa had been cancelled pursuant to s 501(2) of the Migration Act 1958 (Cth) (“the Act”).  The subsection provides that the Minister may cancel a visa granted to a person if the Minister reasonably suspects that person does not pass the “character test” and the person does not satisfy the Minister that the person passes the character test.  Section 501(6)(a) provides that a person does not pass the character test if they have a substantial criminal record.  Here there is no dispute that the applicant had a substantial criminal record, as defined by s 501(7).  On 2 November 2001, Dowsett J ordered that the decision be set aside and the matter remitted to the Minister for further consideration.  His Honour considered that, in adopting the relative weights prescribed by the Ministerial direction (that numbered 17), the Minister’s discretion had been fettered.  Further, it was likely that following the direction had resulted in a failure, on the part of the Minister, to address the proper question.  The Ministerial direction has since been altered.

3                     On 30 May 2002, the applicant’s visa was cancelled pursuant to the decision of the Minister under s 501(2) of the Act.  The applicant seeks review of that decision.  The grounds given in the application for an order of review are:

“1.       that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

2.         that the Minister did not have jurisdiction to make the decision;

3.         that the decision was not authorised by the Act or the regulations;

4.         that the decision was an improper exercise of the power conferred by this Act or the regulations;

5.         that the decision involved errors of law;

6.         that the decision was induced or affected by actual bias;

7.         that the decision involved an exercise of power so unreasonable that no reasonable person could have so exercised the power.”

Grounds 1, 3, 4 and 5 were not pursued by the applicant in submissions, given the decision in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 228.

The Minister’s POWER to make the decision

4                     The argument here advanced is substantially that put to his Honour, Dowsett J.  Counsel for the respondent did not pursue an argument that the applicant was not able to present his argument again, but rather that his Honour was clearly correct, and the argument without merit.

5                     The applicant’s argument may be put shortly.  It is that he had no visa which the Minister could cancel.  If that were the case one might wonder about his status in Australia.

6                     The applicant’s mother’s passport bears a note of the arrival in Australia of a “party of 5”, which would refer to the applicant and his siblings.  The passport was stamped with a visa which provided that an entry permit might issue on arrival for an indefinite period.  At that time the Migration Act provided that a child under the age of 16 who entered Australia in the company of a parent “shall be deemed to be included in any entry permit granted to that parent before the entry of that parent unless the contrary was stated on the permit”.

7                     It is not disputed that the applicant had the benefit of his mother’s entry permit.  The applicant’s point is that this permit expired by operation of law.  This is said to have occurred because the applicant’s mother left Australia in 1974 for a period of some months and was granted another entry permit on return to Australia.  At that time, s 9(1) of the Act provided that where a person who holds 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”.  Section 5(1) defined “the holder” to mean the person to whom the entry permit is granted “or a person who is deemed to be included in the entry permit”.  Dowsett J held that the applicant was therefore deemed to be a holder of his mother’s entry permit.  When she left the country, or when she re-entered the country, subs 9(1) operated to cancel that entry permit in relation to her, but not in relation to the applicant.   I respectfully agree.  The terms of subs 9(1) operate only with respect to the person who is a holder and who leaves Australia.  The applicant had not left Australia.  It follows that he remained the holder of a visa for an indefinite term.  He was therefore the holder of a permanent entry permit, within the meaning of reg 3 of the Migration Reform (Transitional Provisions) Regulations.  As Dowsett J explained, the combined effect of s 40(5) of the Migration Reform Act 1992 (Cth), as subsequently amended in 1994, and regulation 4 of the abovementioned regulations, which is set out below, was that on and after 1 September 1994 the applicant became the holder of a transitional (permanent) visa.  It was that visa which was liable to cancellation.

8                     The applicant submitted that he might also have been the holder of an absorbed person’s visa pursuant to s 34 of the Act.  If this was so it was not made clear how this could advance the applicant’s argument.  As Dowsett J pointed out, if he did hold such a visa, he also plainly held a transitional (permanent) visa which was cancelled.  Upon that cancellation the Minister is taken to have decided to cancel any other visa:  s 501F(3).

Presumption against retrospectivity

9                     The applicant’s argument here focuses upon reg 4.  It is submitted that the effect of the regulation was to change the applicant’s status to that of a visa holder.  As a consequence of that change in status he became subject to detention and removal upon its cancellation, it is submitted.  The argument proceeds upon the assumption that the first ground is correct and that the applicant was not the holder of any visa at 1 September 1994.  It is mistaken.

10                  The alternative argument put was that, assuming the applicant to be the holder of an entry permit, the regulations deemed that permit to be a transitional (permanent) visa.  The applicant submits that the regulation is ‘clearly retrospective in its operation”.  He contends that ss 13 and 14 of the Migration Act, to which I shall refer, are not to be given a retrospective operation.  The conclusion sought to be reached is that those sections can only be viewed prospectively, that is to say, “as operating only on persons who arrived in Australia after 1 September 1994”. 

11                  Regulation 4 provided:

“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.”

12                  The regulation does not apply only to persons arriving in Australia after 1 September 1994.  It does not however have a retrospective operation or effect.  The permanent entry permit is continued in effect.  It was itself liable to cancellation in certain circumstances.

13                  In 1983 the Migration Act was amended.  The definition of an alien was removed and the term “non-citizen” was substituted.  A non-citizen was defined as a person who was not an Australian citizen (s 4(c)) (Act No 112 of 1983).  Sections 13 and 14 of the Act (Act No 184 of 1992 and No 60 of 1994) created the categories of “lawful non-citizens”, being those persons who hold a visa which is in effect, and “unlawful non-citizens”, being persons who do not.  The effect of the cancellation of a visa is, as earlier mentioned, to render a person an unlawful non-citizen (s 15).  The applicant sought, in argument, to establish a third category, namely a “lawful non-citizen who is not in possession of a visa” so as to submit that “the statutory power to remove him from Australia is restricted to that available under Division 9 of the Act”.  I take this to refer to Part 2, Division 9 “Deportation”.  It may be observed that s 198 provides for a right of removal from Australia of “unlawful non-citizens”, which is what the applicant becomes if his visa is cancelled by a valid exercise of power.  A non-citizen, whilst not an Australian citizen, may be entitled to reside in Australia. 

14                  The applicant’s argument once again proceeds upon a wrong premise.  The applicant was a holder of a visa, a lawful non-citizen, until the point of cancellation.  Indeed his right to remain in Australian depended upon the visa.

Lack of Constitutional Power

15                  The applicant sought to argue a matter which might be seen to involve the meaning of the term “alien” in the Constitution.  No notices pursuant to s 78B Judiciary Act 1903 (Cth)  had been given prior to the matter coming on for hearing, the applicant taking the view that no interpretation was involved, and that it was simply a matter of applying the majority decision in Re Patterson Ex parte Taylor (2001) 182 ALR 657.  In any event the ground was not one raised in the application filed, and at the hearing leave to amend to add this ground was sought.  I reserved my decision on that question pending a consideration as to whether the applicant’s argument had any merit.  If it did not, leave would not be granted; if it did, the notices would be given and the matter stood over for further argument.

16                  Citizenship legislation was enacted in 1948 in Australia and the United Kingdom (the Nationality and Citizenship Act 1948 (Cth), later renamed the Australian Citizenship Act, and the British Nationality Act 1948 (U.K.)).  As Gibbs CJ observed in Pochi v Macphee & Anor (1982) 151 CLR 101, at page 108, the principles to which the statutes gave effect were that the peoples of each of the countries of the Commonwealth could have separate citizenship, but that all citizens of Commonwealth countries should have the common status of British subjects.  Section 7 of the Australian Citizenship Act gave effect to this common status which was derivative, being dependant upon the possession of citizenship.

17                  In 1966 Mr Taylor came to Australia on his father’s passport which was stamped with a permanent entry permit.  He had been born in the United Kingdom and was a British subject.   An “alien” was then defined, in the Migration Act, (s 5(1)), as a person who was not a British subject, an Irish citizen or a protected person.  In 1984 the Australian Citizenship Act was amended to omit the definitions of “alien” and “British subject”.  A distinction was then drawn between Australian citizens and non-citizens for the purposes of an entitlement to remain in Australia.  This position maintained in 1969 when the present applicant came to Australia.

18                  In Taylor the majority were agreed that Mr Taylor had never been an alien.  This derived from his status as a British subject on arrival in Australia and because he owed allegiance to the Queen of the United Kingdom.  The changes reflected in the Queen of the United Kingdom becoming the Queen of Australia, after the Royal Style and Titles Act 1973 (Cth), did not effect a change in his status (Gaudron J [44], [51], McHugh J [127], [124], [125], Kirby J [304]-[305], Callinan J agreeing [373]-[378].  A subject of the Queen of Australia, which he became, could not be an alien (McHugh J [124]-[125], Kirby J [301]-[304]).  Gaudron J considered that he remained a member of the body politic of Australia.  The power to legislate to deprive a person of such membership could only be exercised by reference to some change in the relationship between the individual and the community.  A mere change in “constitutional and legal thinking” with respect to the Crown would not suffice (at [47]-[51]).

19                  Taylor’s case is distinguishable from the present on its facts.  Here the applicant was never a subject of the Queen of the United Kingdom or the Queen of Australia.  The applicant sought to derive that status from his father’s Australian citizenship, which was granted to him on 10 April 1969.  It was submitted that, because his father owed allegiance to the Queen upon becoming an Australian citizen and a British subject, so did the applicant.  This is said to have come about through the operation of the common law.  It was submitted that, at common law, a person’s status as a subject of the King was taken from his father.  It would follow, the submission proceeds, that at the moment the applicant’s father became a British subject, or a subject of the Queen in right of Australia, the applicant also acquired this status. 

20                  There are a number of misconceptions in the argument.  For the first proposition reliance was placed upon Blackstone’s Commentaries, Book 1, Ch 10, 369, and Pollock & Maitland, ‘History of English Law” Book II, 460-461.  Blackstone however, points out that it is the subject who is born in the Kingdom to whom allegiance (“natural allegiance”) is implied (368-369).  As Pollock & Maitland observed (460) “Nothing short of a statute can give to an alien all the rights of a natural born subject …”, (see also Pochi at 111).

21                  In any event, citizenship in Australia has had a statutory basis since the Nationality and Citizenship Act of 1948.  Pursuant to it, citizenship could only be acquired by birth, adoption, descent or, as is relevant here, grant.  In the case of a grant an oath of allegiance is required.  The Act did permit the grant of a naturalisation certificate to a minor and the inclusion of the names of children on the naturalisation certificate of the responsible parent:  sub-s 15(3) and (5).  This procedure was maintained in 1969, although s 15(6) replaced s 15(5), and under the Australian Citizenship Act (see s 15(5) and s 14(9)).

22                  In the present case one assumes that the applicant’s father was not, at the time he took citizenship, the “responsible parent”.  Whilst it was obviously intended that in many cases children were to automatically acquire the status of citizen on a grant of it to their parent, the inclusion of their name was a matter of discretion for the Minister.  In this statutory context it is not possible to imply an intention that every child was, automatically, to become a citizen.  In the applicant’s case his status, as the holder of an entry permit for an indefinite term, was maintained until his mother, as the responsible parent during his minority, obtained citizenship, and the Minister included his name on her certificate, or until he was in a position to apply for citizenship himself. 

23                  There were references made in Taylor to a person being absorbed within the Australian community, as relevant to the question as to whether the immigration power was available.  In Salemi v Mackellar [No 2] (1977) 137 CLR 396, 430, Stephen J had observed that under the Migration Act, an immigrant who has resided for more than five years in Australia without conviction for specified offences becomes immune from deportation and that:

“In this sense, by the effluxion of time, he attains a status secure from deportation.  Not so the alien, who, so long as the immigration power reaches him, always remains liable to deportation…”. 

24                  This passage was referred to by Gibbs CJ in Pochi (111) in connexion with an argument that if a person were absorbed within the Australian community they were no longer an alien.  His Honour said:

“…This argument is impossible to maintain.  It was well settled at common law that naturalization could only be achieved by Act of Parliament - even action by the Crown under the prerogative could not give an alien the status of a British subject:  Blackstone, op, cit, p 374;  Chitty, Prerogatives of the Crown, pp 14-15;  Holdsworth, History of English Law, Vol IX, p 76.  The common law rules as to alienage were no doubt feudal in origin, but there is nothing antiquated in the notion that a person’s nationality is not changed by length of residence or by an intention permanently to remain in a country of which he is not a national.  There are strong reasons why the acquisition by an alien of Australian citizenship should be marked by a formal act, and by an acknowledgement of allegiance to the sovereign of Australia.  The Australian Citizenship Act validly so provides.”

25                  Whilst it might be thought that an aspect of Pochi (at 109) might be impliedly disapproved by the majority in Taylor, I do not understand their Honours to depart from this view and to hold that absorption into the community is itself a basis for citizenship.

26                  There is no merit in the argument sought to be advanced.  Leave to amend should be refused.

27                  The application for leave to amend the application to raise a question whether the applicant could be regarded as an alien should be refused.

Actual Bias

28                  Counsel for the applicant conceded that the amended application was deficient because it did not provide particulars of bias in accordance with O 54B r 2(3).  The particulars provided at the hearing were in these terms:

“On or about the time of the decision the Minister had, in a television interview, said that the courts are ‘finding a variety of ways and means of dealing themselves back into the review game.’;  and further, that in or about April 2002 at a Commonwealth Lawyers function the Minister referred to Judges of this Court as ‘unelected and unrepresented officials’.  These statements are indicative of a state of mind of the Minister that was closed and not open to persuasion.”

29                  In Minister for Immigration and Multicultural Affairs v Jia [2001] 205 CLR 507 [72] the state of mind described as bias, in the form of prejudgment, was said to be “one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented”.  In this case this can be seen, it was submitted, by the timing of events.  The Minister’s decision had been overturned by a Judge of this Court.  The Minister then criticised judges of the Court.  This occurred at about the same time as the matter came back to him for a further decision. 

30                  In fact, it was only the comments of April 2002 which pre-dated the decision.  The other media reports relied upon are of statements made in the month after the decision was made.  There are other difficulties with the argument.

31                  It is necessary to understand the full extent of the allegation.  The factors identified point to a conclusion that the Minister made a deliberate decision to cancel the applicant’s visa without considering the matter again, as was required.  Such conduct, if established, would involve impropriety.  Good faith would be absent.  It would not be a question of bias towards the applicant’s case.  There is simply no evidence of these matters.  They cannot be deduced from the few statements pointed to.  There is nothing in the way in which the decision was apparently arrived at to suggest that the Minister failed to bring his mind to bear upon the matter.  There is no evidence that the Minister ignored his obligations or that he had an intention to so.

32                  There is another difficulty with the argument, at a factual level.  The statements made by the Minister disclose an opinion held by the Minister about judges of the Court.  This does not translate to a view of the applicant’s case.  It is not clear to me how an inference, that the Minister had a closed mind, can be drawn from the fact that the statements were made at a time close to the making of the decision if they cannot be shown to be referrable to that decision.  The applicant cannot connect the expression of such an opinion to deciding his case in a particular way.  There is absent any evidence of an intention, on the part of the Minister, to do so.  Such a suggestion is without any foundation in fact.

Unreasonableness

33                  The applicant accepts that a decision under s 501(2) is a “privative clause decision”, within the meaning of the Migration Act(see s 474(2) and (3)) and that it follows that the principles in R v Hickman& Ors ;  Ex parte Fox & Anor (1945) 70 CLR 598, 615-616 are to be applied.  It is nevertheless submitted that the decision is subject to challenge for unreasonableness.  One of the three conditions to the application of the Hickman principles is that the decision be a bona fide attempt to examine the power.  It is submitted that if a decision is unreasonable in the legal sense, this condition is not met.

34                  An unreasonable decision is one which no reasonable person could have reached:  Associated Provincial Pictures Houses Limited v Wednesbury Corporation [1948] 1 KB 223;  Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Ors (1986) 162 CLR 24, 41.  This ground for judicial review is concerned largely with rationality.  Nevertheless it may be in some cases that, at a factual level, the very unreasonableness of the decision is indicative of a lack of good faith.  The first question is whether the decision here can be characterised as unreasonable.

35                  It may be expected that strong views might be held about whether the circumstances pertaining to the applicant require the cancellation of his visa and deportation.  A decision to do so may be seen as very harsh, given that he has lived all his life in Australia, has a young family here and no family in Lebanon.  To say that the decision is unreasonable on these accounts however, would be to say that the reasoning is wrong.  It was pointed out in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 626 that the word “unreasonable” is often used to declare, emphatically, that the decision was wrong.  It does not follow that there will be a legal consequence.  This is such a case.  The complaint made of the Minister’s decision is, in reality, that he did not give enough weight to the factors referred to above and gave too much weight to the applicant’s criminal history and the nature of the convictions, the majority of which involved drugs.  As Mason J observed in Peko-Wallsend (at 42) it needs to be borne in mind that a Minister takes into account broader policy considerations.  The Courts will not readily find reviewable error as to what the public interest requires.  The applicant cannot establish that the decision was unreasonable in the legal sense.

conclusion

36                  The application for leave to amend will be refused and the application dismissed with costs.

Associate:

Dated:              6 November 2002