FEDERAL COURT OF AUSTRALIA

Watson v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1654

MIGRATION – cancellation of visa on character grounds – letter sent to removee that no further action will be taken to effect his removal from Australia – whether cancellation of visa revoked

Migration Act 1958 (Cth) s 501

Judiciary Act 1903 (Cth) s 39B

Minister for Immigration and Multicultural and Indigenous Affairs v Craig [2004] FCAFC 294 followed

IRWIN WATSON v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

No Q 83 of 2004

SPENDER J

BRISBANE

15 DECEMBER 2004

THE COURT DECLARES THAT:

1.           The cancellation of the Transitional (Permanent) Visa of Irwin Watson was revoked by the letter of 13 September 2001.

THE COURT ORDERS THAT:

2.    The Respondent pay the costs of the applicant of and incidental to the appeal, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

1                     Irwin Watson was born in Scotland on 27 March 1973.   According to a chronology of the appellant, he arrived in Australia on 14 April 1973, aged less than three weeks.  In the Decision Record of the Respondent, he is said to have entered Australia on 14 July 1973, when he was aged three months.  He has lived in Australia ever since.  During that time he has acquired a lengthy criminal history. 

2                     On 11 July 2000 in the District Court in Brisbane, he was convicted of a number of offences, and was sentenced to two years imprisonment, eligible for parole after serving nine months.   While in prison, he was given notice by the respondent Minister of an intention to cancel his Transitional (Permanent) visa under s 501(2) of the Migration Act 1958 (Cth), (‘the Act’) on the ground that he failed the “character test”.  On 10 March 2001 the Minister cancelled his visa. 

3                     On 13 September 2001 the Department of Immigration and Multicultural Affairs (‘the Department’) wrote informing Mr Watson that:

‘… the Department will no longer be proceeding with your removal following the conclusion of the custodial element of your sentence.’

4                     On 25 January 2002, Mr Watson was released into the community.  On 15 March 2004 the Department changed its mind, and wrote to him, saying:

‘… the decision of the Minister to cancel your visa under section 501 of the Migration Act 1958 stands, and you are liable to be detained under s189 of the Migration Act 1958 and removed from Australia.’

5                     On 19 May 2004 Mr Watson’s then custodial sentence ended, and the applicant was placed in immigration detention.

6                     Notwithstanding that it seems extraordinarily unfair to Scotland to send Mr Watson there (since Mr Watson’s only connection with Scotland is that his father was born there, he himself was born there, and he spent the first few months of his life there), the Minister wishes to remove him from Australia to Scotland.  Mr Watson does not want to go. 

7                     Hence this application pursuant to s 39B of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’).

8                     It is necessary to set out the facts in considerably more detail. 

9                     On 24 May 1945 the applicant’s mother, Hendrieka Watson, was born in Holland.  On 27 June 1947 the applicant’s father, Irwin Watson, was born in Scotland.  In 1956 the applicant’s mother arrived in Australia, then aged eleven.  On 27 May 1966 the applicant’s half brother, Michael Watson, was born to Hendrieka Watson.  On 20 December 1969 the applicant’s father and mother married in Australia.  On 20 September 1970 the applicant’s brother, George Watson, was born.  At about the end of 1971 the applicant’s parents and his brothers left Australia for an extended holiday in Scotland. 

10                  On 27 March 1973 the applicant was born in Scotland.

11                  In either April 1973 or July 1973, the applicant’s parents and brothers returned to Australia, and the applicant arrived in Australia.  On 17 February 1975, before the applicant was two years old, his father died in Australia.

12                  The applicant’s criminal history commenced on 29 July 1991 when he was convicted of being found on premises without lawful excuse.  On 2 April 1993 he was convicted of receiving, forgery and uttering.  On 10 December 1993 he was convicted of unlawful use of a motor vehicle, wilful and unlawful destruction of property, and assault occasioning bodily harm.  On 9 January 1997 he was convicted of behaving in a disorderly manner, obstructing police and abusive words.  On 12 March 1999 he was convicted of breach of the Bail Act.  On 4 October 1999 he was convicted of again breaching bail conditions.  On 12 January 2000 he was convicted of wilfully trespassing on a railway. 

13                  On 11 July 2000 he was sentenced in the Brisbane District Court for:

‘5 Charges of Enter Premises and Commit an Indictable Offence + Break, and 1 Charge of Enter or In Premises with Intent + Break, imprisonment for two (2) years on each charge;

 Enter Premises and Commit an Indictable Offence + Break, imprisonment for twelve (12) months;

Attempted Unlawful User of Motor Vehicle, imprisonment for two (2) years;

One (1) charge of Enter Dwelling with Intent to Commit an Indictable Offence + Break and two (2) charges of Serious Assault, imprisonment for twelve (12) months on each charge.’

- adopting the description in the Department’s Notice of Intention to Cancel Visa under Subsection 5012(2) of the Migration Act 1958 dated 7 September 2000.

14                  Section 501 of the Act relevantly provided:

…(2)    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.

(3)       The Minister may:

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

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

if:

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

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

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

(5)        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).

(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);

…

            Otherwise, the person passes the character test.

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

            …

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

…’

15                  On 7 September 2000 an officer of the Department of Immigration and Multicultural Affairs who was delegated to cancel or refuse visas under s 501 wrote to the applicant, which letter said in part:

‘NOTICE OF INTENTION TO CANCEL VISA UNDER SUBSECTION 501(2) OF THE MIGRATION ACT 1958

You are currently the holder of a Transitional (Permanent) Visa.  This visa is currently your sole authority to remain in Australia.

It has come to the attention of the Department that this visa may be liable to cancellation under Section 501 of the Migration Act 1958 (the Act).  The relevant ground is:

       s.501(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));’

16                  The letter notified that the writer considered that the applicant had a substantial criminal record within the meaning of s 501(7)(c).  The letter extended an opportunity to comment on the possible exercise of the power to cancel the applicant’s visa, and said:

‘In reaching a decision whether or not to cancel, the Minister or his or her delegate will have regard to the matters noted above and the attached Minister’s Direction No. 17 titled “Direction under Section 499 – Visa Refusal and Cancellation under Section 501 Migration Act 1958”.’

17                  On 12 September 2000 the applicant acknowledged receipt of the Notice of Intention to Cancel Visa, a copy of s 501 of the Migration Act 1958 and a copy of the direction under s 499 Visa Refusal and Cancellation under s 501 of the Migration Act 1958, Direction No. 17.

18                  On 15 November 2000 an officer of the Department wrote to Mr Watson advising that no response had been received from him, and that if no comment had been provided by 29 November 2000, a submission would be prepared for the Minister on the basis of information on file.

19                  On 1 December 2000 a correctional officer from Caboolture Community Corrections forwarded an Immigration Report to the Department.  Amongst other things that report indicated a high risk of recidivism, and indicated that on release he would have no support from any of his family members.

20                  On 18 January 2001 an officer of the Department wrote to the applicant advising him of some of the details contained in the Immigration Report of 1 December 2000 and inviting him to comment.  The applicant made no submissions in response to that invitation, and on 16 March 2001 the applicant was advised by an officer of the Department that:

‘After careful consideration of the available information, the Minister for Immigration and Multicultural Affairs has decided to cancel your visa pursuant to s.501(2) of the Act.  The particular ground under which you do not pass the Character Test is subsection 501(6)(a) of the Act.’

The letter advised:

‘Please note that as the decision to cancel was made by the Minister personally, the Administrative Appeals Tribunal (AAT) cannot review the decision.’

21                  The Decision Record, which was enclosed with the letter advising of the cancellation of the applicant’s visa, was said in that letter to set out the reasons for the decision.  That record indicates that the applicant entered Australia on 14 July 1973.  Paragraph 5 of that Decision Record states:

‘If you are satisfied that Mr WATSON does not pass the character test you must consider the exercise of your discretion to decide whether Mr WATSON 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 section 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.’

22                  The Decision Record referred, in particular, under the heading “Primary Considerations”, to:

‘Protection of the Australian Community’ including ‘(a) seriousness and nature of conduct … (b) likelihood that the conduct may be repeated (including any risk of recidivism) … (c) General deterrence … The Expectations of the Australian Community … The Best Interests of the Children … Other Considerations.’ 

23                  Under the heading “Other International Obligations”, the Decision Record said:

‘Mr WATSON has not made any claims which require assessment in relation to international obligations’

and said under the heading “Any other relevant considerations”:

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

24                  The fact is that no matter had been raised by or on behalf of the applicant to the Minister or the Department. 

25                  Mr Philip Ruddock, the then Minister, on 8 March 2001, signed a decision expressed in the following terms:

‘I have considered all relevant matters … and have decided that:

…

(c)   I reasonably suspect Irwin WATSON does not pass the character test and Irwin WATSON has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION TO CANCEL THE VISA so I hereby cancel the visa’

26                  An officer of the Department wrote to the Sentence Management Co-ordinator at Wolston Correctional Centre on 16 March 2001 notifying that the applicant’s visa was cancelled by the Minister on 8 March 2001, and that his status in Australia from this date is that of an unlawful non-citizen.  On 21 March 2001 the applicant acknowledged that he had received the original of his Notice of Visa Cancellation under subsection 501(2) of the Act, as well as other documents.

27                  On 13 September 2001 an officer of the Department wrote to the applicant, care of the Wolston Correctional Centre, in the following terms:

‘Dear Mr Watson

Following a recent High Court decision, advice has been received from the Australian Government Solicitor (AGS) which indicates that the Minister for Immigration and Multicultural Affairs does not have the power to deport or remove certain British subjects who arrived prior to 1973.  This decision affects individuals who are the subject of deportation orders or whose visas have been cancelled under section 501, 501A or 501B of the Migration Act 1958, and who arrived in Australia as British subjects as permanent residents prior to 1973.

As you fall within this category, the Department will no longer be proceeding with your removal following the conclusion of the custodial element of your sentence.’

28                  On 20 September 2001 an officer of the Department wrote to the Sentence Management Co-ordinator at Wolston Correctional Centre in the following terms:

‘PERSONS NO LONGER OF INTEREST

Following a recent High Court decision, advice has been received from the Australian Government Solicitor (AGS) which indicates that the Minister for Immigration and Multicultural Affairs does not have the power to deport or remove certain British subjects who arrived prior to 1973.  This decision affects individuals who are the subject of deportation orders or whose visas have been cancelled under section 501, 501A or 501B of the Migration Act 1958, and who arrived in Australia as British subjects as permanent residents prior to 1973.

As a result of this decision, the following persons currently located in your facility are no longer of interest to the Department of Immigration and Multicultural Affairs:

NAME                             Date of Birth                   Citizenship

…

WATSON, Irwin              27/03/1973                      United Kingdom

…

Please note in respect of … and WATSON, the Department will no longer be proceeding with removal of these persons following the conclusion of the custodial element of their sentences.’

29                  On 15 March 2004 an officer of the Department, now called the Department of Immigration and Multicultural and Indigenous Affairs, wrote to the applicant in the following terms:

‘On 13 September 2001 the Department wrote to you to inform you that no further action would be taken to enforce the decision to cancel your visa under section 501 of the Migration Act 1958 dated 08 March 2001.  This followed a decision of the High Court that indicated that certain British subjects who arrived in Australia prior to 1973 were not ‘aliens’, and could not be deported or removed, under the Migration Act 1958.

In a more recent decision, a majority of the High Court has departed from the previous decision and held that British subjects who arrived after 26 January 1949 and have not been naturalised are ‘aliens’ for the purposes of the Migration Act 1958.  I refer you to the decision of Shaw v MIMIA [2003] HCA 72 (9 December 2003) which now represents the law.  As a consequence, the decision of the Minister to cancel your visa under section 501 of the Migration Act 1958 stands and you are liable to be detained under s189 of the Migration Act 1958 and removed from Australia.

You are hereby notified of the Department’s intention to enforce the decision to cancel your visa of 08 March 2001.  Accordingly, you will be liable for removal from Australia at the conclusion of your sentence.’

30                  On 18 March 2004 an officer of the Department wrote to the Officer in Charge of the Wolston Correctional Centre in the following terms:

‘I, Christopher James O’KEEFE’, am an officer for the purposes of the Migration Act 1958 (the Act).

You currently hold Mr Irwin WATSON (27/03/1973 UK)in custody.

Pursuant to section 254 of the Act, from the time at which his/her custodial sentence is completed, he/she is liable to be held in immigration detention under the Act, as he/she is a removee or deportee.

Under section 5 of the Act, a person is in immigration detention, if being held by or on behalf of an officer at a place specified in paragraph (b) of that definition (‘a place of immigration detention’).

You are hereby required to hold him in Wolston Correctional Centre, a place of immigration detention, from the time at which his/her custodial sentence is completed until he is collected by officer of Global Expertise in Outsourcing, Officers authorised under the act, for transfer to Immigration Detention in Arthur Gorrie Correctional Centre and subsequent removal from Australia.’

31                  On 21 May 2004 the applicant filed an application for relief pursuant to s 39B of the Judiciary Act.  That application recited:

‘On or about 8 March 2001 the applicant was notified of a decision to cancel his permanent resident visa under section 501 of the Migration Act 1958 (“First Decision”).  Subsequently, he was notified by letter from the Department of Immigration and Multicultural Affairs (“Department”) dated 13 September 2001 that the Department “… will no longer be proceeding with your removal following the conclusion of the custodial element of your sentence” (“Second Decision”.  Then, by letter from the Department dated 15 March 2004, the applicant was notified of the Department’s intention to enforce the First Decision (“Third Decision”).’

The applicant sought the following relief:

‘(a)   An order that the Respondent show cause why a wrist [sic] of certiorari should not issue out of this Honourable Court directed to the Respondent to quash the first decision or, alternatively, the third decision;

(b)     An order that the Respondent show cause why a writ of prohibition should not issue out of this Honourable Court directed to the Respondent prohibiting her from acting further on the first, or alternatively, the third decision;

(c)     An injunction directed to the Respondent prohibiting her from acting on the first, or alternatively, the third decision;

(d)     A declaration that the first decision was revoked by the second decision;

(e)     Such further or other relief as to this Honourable Court might seem appropriate.’

32                  The grounds on which that relief is sought by the applicant can be summarised as follows:

‘(a)   The Respondent erred in purporting to apply Direction No 17, purportedly made pursuant to s.499 of the Act, when the Direction was invalid;

b)      The Respondent failed to comply with Direction No 17 in breach of s.499(2A) of the Act;

(c)     The third decision is invalid by reason of the breach of the rules of procedural fairness arising from the Applicant not being afforded an opportunity to be heard before the making thereof;

(d)     The Respondent is estopped from acting further on the first decision, that decision having been effectively revoked by the second decision;

(e)     The first decision was revoked by the second decision.’

33                  The parties in this case both proceeded on the basis that the reasons for the decision to cancel the applicant’s visa were set out in the “Decision Record”.

34                  At the time the first decision was made, the practice of the Minister was to adopt the Decision Record as his reasons for cancellation of the visa pursuant to s 501(2) of the Act.  It was held in Minister for Immigration and Multicultural Affairs v W 157/000 (2002) 125 FCR 433 that this practice does not comply with the requirements of s 501G(1)(e) of the Act, which requires that:

‘If a decision is made under subsection 501(1) or (2) … to:

…

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

the Minister must give the person a written notice that:

…

e)      sets out the reasons (other than non-disclosable information) for the decision; …’

per Branson J at pars 54-55, per Goldberg J at par 85 and per Allsop J at par 89.

35                  The covering letter in this case, which enclosed the Decision Record, contained the following statement:

‘I also enclose with this Notice:

·        A copy of the decision record that sets out the reasons for the decision (other than non-disclosable information).’

36                  The focus of the submissions for the applicant was the claim that Direction Number 17, which the Minister applied, was invalid, as constituting an unlawful fetter on the decision of the Minister.  Dowsett J in Aksu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 667 (‘Aksu’) held that Direction Number 17 was inconsistent with the intention contained in s 501 of the Act, that the discretion to refuse or cancel a visa be unfettered.  His Honour held that, on that basis, Direction Number 17 may be invalid.  His Honour concluded that:

‘The minister’s adoption of the briefing paper implies his adoption of the “binding” nature of the directions as to weight.  … It is an inescapable conclusion of his adoption of it that he proceeded in accordance with [the briefing paper].  … It follows that he has inappropriately fettered his discretion by assuming that each primary consideration bore at least as much weight as each other consideration, regardless of the facts of the case.’

37                  The question has been considered by the Full Court of the Federal Court on two occasions: Awa v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 189 ALR 328 and Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326. 

38                  In Javillonar v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 311 Stone J distinguished the decision in Aksu and the decision in Ruhl v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 401, and summarised the position at par 52:

‘In summary, the problem with Direction 17 is that, contrary to s 499(2), it is inconsistent with the unfettered discretion given in s 501 because it purports to predetermine the relative weight to be given to various factors without the necessity of independent consideration of the relevant case.  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 under s 476(1)(e) is not made out.’

39                  Paragraph 5 of the Decision Record, set out in par 21 above, is headed  “DISCRETION”.

40                  In my judgment, it cannot be said that, in this case, Direction Number 17 operated as an unlawful fetter to the exercise of the Minister’s discretion.  The Minister was advised that he was not bound by the Direction.  Moreover, since the applicant made no submissions in response to any of the various invitations from the Department, it cannot be suggested that there was any error in the weighting accorded to any relevant consideration.  This attack on the correctness of the first decision therefore fails.

41                  However, in my opinion, the first decision was revoked by the second decision. 

42                  The Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Craig [2004] FCAFC 294 (‘Craig’) held that a letter sent to a deportee stating that no further action would be taken to effect his deportation constituted a revocation of the deportation order.  That decision was in the context of s 201 and s 206 dealing with deportation rather than s 501(2) of the Act dealing with cancellation of a visa that has been granted to a person. 

43                  Section 29 of the Act, relevantly, defines a visa as a permission to a person to remain in Australia.  Section 29(1) provides:

‘(1)   Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following:

(a)     travel to and enter Australia;

(b)     remain in Australia.’

44                  The letter in Craig’s case advising that no further action would be taken to effect his deportation was in the following terms:

‘Following a recent High Court decision, advice has been received from the Australian Government Solicitor (AGS) which indicates that the Minister for Immigration and Multicultural Affairs does not have the power to deport or remove certain British subjects who arrived prior to 1973.  This decision effects individuals who are the subject of deportation orders or whose visas have been cancelled under section 501, 501A or 501B of the Migration Act 1958, and who arrived in Australia as British subjects as permanent residents prior to 1973.

As you fall within this category, no further action will be taken to effect your deportation and arrangements have been made to have you released from immigration custody as soon as practicable.’

45                  The larger paragraph is in identical terms to the letter of 13 September 2001 addressed to Mr Watson.  The second paragraph of the letter to Mr Watson read:

‘As you fall within this category, the Department will no longer be proceeding with your removal following the conclusion of the custodial element of your sentence.’

The High Court decision referred to in the letter was Re Patterson; Ex parte Taylor (2001) 207 CLR 391. 

46                  On 9 December 2003 the High Court delivered its decision in Shaw v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 143 which overruled Paterson.

47                  In Craig’s case the Department sent a letter to him informing him that:

‘… the decision of the Delegate of the Minister to order your deportation under section 200 of the Migration Act 1958 stands and you are liable to be detained under s253 of the  Migration Act 1958 and removed from Australia.

You are hereby notified of the Department’s intention to enforce the decision to order your deportation of 02 March 2000. …’

48                  The language of the letter of 15 March 2004 to Mr Watson is in similar terms.  The last paragraph of that letter reads:

‘You are hereby notified of the Department’s intention to enforce the decision to cancel your visa of 08 March 2001.  Accordingly, you will be liable for removal from Australia at the conclusion of your sentence.’

49                  It is true there is no express power in the Act to revoke a decision to cancel a visa.  However, the observations of Northrop and Pincus JJ in Dallikavak v Minister of State for Immigration and Ethnic Affairs (1985) 9 FCR 98 at 103-104 are apposite:

‘…if the Minister, having made a deportation order, subsequently becomes aware of circumstances which lead him to doubt the correctness of his order, or to come to the view that its correctness might need lengthy re-examination, he may revoke the order.  If that happened, the person affected would cease to be a deportee under the Act but would remain a prohibited non-citizen and be subject to all the restrictions imposed by the Act on persons of that status.  If on re-examination the Minister is of opinion that the order should again be made, no new grounds are necessary, in our view: see the decision of Smithers J in Re Chan and Minister for Immigration and Ethnic Affairs (1977) 17 ALR 432 at 441-442.  See also Acts Interpretation Act 1901 (Cth), s 33(1).’

50                  In my judgment, the letter of 13 September 2001 implicitly communicated to Mr Watson that a decision had been made by, or on behalf of, the Minister to treat the decision to cancel his visa as no longer operative or having any force or effect.  As in Craig, the evident purpose of the letter to Mr Watson of 13 September 2001 was to declare the Minister’s position in relation to cancellation of Mr Watson’s visa and his removal from Australia, and to remove any residual uncertainty as to the status of the decision to cancel his visa.  The Minister had decided that no further action would be taken to effect his removal from Australia, a result which could only be secured if the decision to cancel his visa was revoked.  As the Full Court in Craig observed:

‘The mere fact of the order having been made had adverse consequences for the respondent.  It can be inferred that upon the Minister determining that she had no power to make the order and therefore no power to carry it into effect, she intended to and would take the appropriate legal steps available to her under the Act to brings its adverse effects to an end.’

51                  Although the Full Court in Craig was concerned with an order for deportation rather than cancellation of a visa, in my opinion the reasoning supports the conclusion that the letter of 13 September 2001 to Mr Watson effected a revocation of the cancellation of his visa.

52                  I will make a declaration that the cancellation of the visa of Mr Watson made on 8 March 2001 was revoked by the letter of 13 September 2001.

53                  The respondent should pay the applicant’s costs of and incidental to these proceedings, to be taxed if not agreed.

Associate:

Dated:              15 December 2004