FEDERAL COURT OF AUSTRALIA

Hicks v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1671

MIGRATION – judicial review – New Zealand citizen – refusal of visa – failure to pass character test under s 501(6) of the Migration Act 1958 (Cth) – application for special category class TY444 visa – whether provisions for special category visas repugnant to provisions of character test – whether declaration should issue to the effect that at the moment the applicant entered Australia and then the migration zone he was the holder of a visa – whether refusal not made in accordance with requirements of natural justice because protected information was not divulged, communicated or summarised – whether decision-maker precluded from selective use of different ground on occasion of subsequent application

Migration Act 1958 (Cth) ss 5, 13, 14, 15, 29(1), 30, 31, 32, 65, 82(8), 501, 503A

Migration Reform Act (1992) (Cth)

Migration (Offences and Undesirable Persons) Amendment Act 1992 (Cth)

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

Migration Legislation Amendment (Protected Information) Act 2003 (Cth)

Migration Regulations 1994 Sch 1 Pt 2 item 1219, Sch 2 item 444.511, reg 5.15A

Ansett Transport Industries (Operations) Pty Limited (1977) 139 CLR 54 applied

Ayr Harbour Trustees v Oswald (1883) 8 App CAS 623 cited

Goodwin v Phillips (1908) 7 CLR 1 cited

Graham v Deputy Chief of Air Force [2004] FCA 1377 cited

Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 cited

Hicks v Nixon [2004] FCA 290 cited

Hicks v Nixon [2004] FCAFC 223 cited

Hoffman v Chief of Army [2004] FCAFC 148 distinguished

Minister for Immigration & Multicultural & Indigenous Affairs v Ball [2004] FCAFC 91 applied

Minister for Immigration & Multicultural & Indigenous Affairs v Hicks [2004] FCAFC 114 cited

Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-Stock Corporation (1980) 29 ALR 333 distinguished

STEPHEN EDWARD HICKS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

W177 of 2003

RD NICHOLSON J

17 DECEMBER 2004

PERTH

THE COURT ORDERS THAT:

1.                  The application for review be dismissed.

2.                  The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

1                     By an application dated 14 August 2003 the applicant seeks a constitutional writ to quash the purported decision of a delegate of the respondent made on 6 August 2003.  In that decision the delegate decided that the applicant did not pass the character test in s 501 of the Migration Act 1958 (Cth) (‘the Act’) and was unable to satisfy the delegate that he did so, so that the applicant’s application for a grant of a class TY444 visa should be refused.  The applicant also seeks a declaration concerning his visa status on that date. 

prior decisions

2                     The applicant has previously been the subject of other decisions in this Court, some of which become relevant to a resolution of this present proceeding.  Those other proceedings were as follows.  In Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757, French J, in orders made on 21 July 2003 quashed a decision by the respondent made on 26 November 2002 to cancel the applicant’s visa class TY444.  In his reasons French J found that s 501(7)(d) of the Act was to be understood as requiring to be counted only those terms of imprisonment which are other than concurrent.  His Honour therefore concluded that the respondent had proceeded to exercise his power to cancel the applicant’s visa upon an erroneous construction of that paragraph.  He found this amounted to a jurisdictional error, as satisfaction of the matters dealt with in the paragraph was essential to the effective exercise of the power of cancellation arising under s 501(2) of the Act.  In Minister for Immigration & Multicultural & Indigenous Affairs v Hicks [2004] FCAFC 114, the Full Court (Hill, Carr and Hely JJ) dismissed an appeal from the decision of French J. 

3                     In Hicks v Nixon [2004] FCA 290 on 22 March 2004, I refused an application brought by the applicant seeking an interlocutory order that the then respondents be restrained from acting on a decision by the then first respondent made on 6 August 2003, being the decision the subject of the application for review in this proceeding.  In Hicks v Nixon [2004] FCAFC 223, the Full Court (French, Emmett and Selway JJ) dismissed an application for leave to appeal from that refusal of interlocutory relief. 

background circumstances

4                     The applicant’s case relies upon affidavits of his solicitor sworn on 14 August 2003, 11 September 2003 and 25 November 2003 as well as an affidavit of the applicant sworn on 30 November 2003.  The applicant’s case also relies upon the respondent’s affidavit sworn by Ms Ling on 8 October 2003. 

5                     The circumstances in which the decision came to be made were as follows.  Following the decision by the respondent on 26 November 2002 to cancel the applicant’s visa, he was detained from 20 December 2002.  On 19 January 2003 he voluntarily departed from Australia for New Zealand.  On 1 July 2003 French J made his orders quashing the respondent’s decision to cancel the applicant’s visa.  On 6 August 2003 the applicant flew from New Zealand to Sydney.  On arrival he applied to the respondent’s delegate for a special category visa. 

6                     In refusing the visa application, the delegate of the respondent stated that he had considered all relevant matters including an assessment of the character test within the meaning of s 501 of the Act, the Minister’s Direction under s 499 of the Act and the applicant’s comments.  In the decision record it is stated:

‘By his admission, Mr Hicks is a member of the Rebels OMCG.  Therefore there is direct evidence which links Mr Hicks to this outlaw motor cycle gang.  I also accept that the intelligence from law enforcement agencies is credible and reliable.  There is also a public record from a court of linking Mr Hicks to this outlaw motor cycle gang.’

7                     In a notice to the applicant dated 6 August 2003 the decision-maker stated:

‘The particular ground under which you do not pass the Character Test is s 501(6)(b) of the Act, as you have an association with a person, group or organisation involved in criminal conduct, namely by your own admission you have an association to an outlaw motor cycle gang known as the “Rebels”.’

relevant statutory and regulatory provisions

8                     The special category visa which the applicant sought is provided for in s 32 of the Act in the following terms:

‘32

(1)               There is a class of temporary visas to be known as special category visas.

(2)               A criterion for a special category visa is that the Minister is satisfied the applicant is:

(a)               a non-citizen:

(i)                  who is a New Zealand citizen and holds, and has shown an officer, a New Zealand passport that is in force; and

(ii)                is neither a behaviour concern non-citizen nor a health concern non-citizen; or

(b)               a person declared by the regulations, to be a person for whom a visa of another class would be inappropriate; or

(c)                a person in a class of persons declared by the regulations, to be persons for whom a visa of another class would be inappropriate.’

9                     Section 32 is also to be understood in the context of the definition of ‘behaviour concern non-citizen’ which appears in s 5 of the Act and which provides:

‘behaviour concern non-citizen means a non-citizen who:

(a)               has been convicted of a crime and sentenced to death or to imprisonment, for at least one year; or

(b)               has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year if:

(i)                 any period concurrent with part of a longer period is disregarded; and

(ii)               any periods not disregarded that are concurrent with each other are treated as one period;

whether or not:

(iii)             the crimes were of the same kind; or

(iv)             the crimes were committed at the same time; or

(v)               the convictions were at the same time; or

(vi)             the sentencings were at the same time; or

(vii)           the periods were consecutive; or

(c)               has been charged with a crime and either:

(i)                 found guilty of having committed the crime while of unsound mind; or

(ii)               acquitted on the ground that the crime was committed while the person was of unsound mind;

(d)               has been removed or deported from Australia or removed or deported from another country; or

(e)               has been excluded from another country in prescribed circumstances;

where sentenced to imprisonment includes ordered to be confined in a corrective institution.’

10                  The Minister’s power to grant a visa is provided for in s 29(1) and is subject to the Act.  It is there recognised that a visa may either be for travel to and entry of Australia, or to remain in Australia, or both.  Section 30 relevantly provides that a visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a temporary visa, to remain during a specified period or until a specified event happens or while the holder has a specified status.  Section 31(1) provides that there are to be prescribed classes of visa.  Section 31(2) provides that as well as the prescribed classes there are the classes provided for in certain sections including s 32.  Section 31(3) provides the regulations may prescribe criteria for a visa or visas of a specified class including those provided for in s 32.  Section 31(4) provides that the regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both.  In the absence of holding a visa the applicant would be an unlawful non-citizen:  s 13 and s 14 of the Act. 

11                  The Migration Regulations, Sch 1 Pt 2, provide in item 1219 for the special category (temporary) (class TY) visa.  Such a visa must be made in Australia either in immigration clearance or after clearance, or outside Australia if the applicant is to travel on a pre-cleared flight (which was not the case here).  Subclass 444 has as criteria those matters set out in s 32(2)(a) of the Act and reg 5.15A.  That regulation requires that the applicant be a New Zealand citizen who holds, and has shown an officer, a New Zealand passport that is in force and who is not a health concern non-citizen or a behaviour concern non-citizen only because he or she has been excluded from another country in circumstances that, in the Minister’s opinion, do not warrant the exclusion of the applicant from Australia.  In item 511 of subclass 444, it is provided that a temporary visa permits the holder to ‘remain in Australia while the holder is a New Zealand citizen’.  It is accepted on behalf of the applicant that the special category visa he sought was not one entitling him to enter Australia. 

12                  It is relevant also to set out the terms of the respondent’s power to grant or refuse the grant of a visa, which appears in s 65 as follows:

‘65

(1)          After considering a valid application for a visa, the Minister:

(a)          if satisfied that:

(i)            the health criteria for it (if any) have been satisfied; and

(ii)          the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)        the grant of the visa is not prevent by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)        any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b)          if not so satisfied, is to refuse to grant the visa.

(2)          To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3).’

13                  The respondent also has power pursuant to s 501(1) of the Act to refuse to grant a visa to a person if the person does not satisfy him or her that the person passes the character test provided for in s 501(6).  A similar power arises in respect of cancellation of a visa pursuant to s 501(2).  The character test is provided for as follows:

‘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)); 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 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.’

14                  There are four issues raised as grounds of review by the applicant’s fourth amended application for review. 

repugnancy between character test and special category visas

15                  The applicant submits that the provisions in the definition of ‘behaviour concern non‑citizen’ as applied by s 32 and reg 5.15A cover the field in relation to the character requirements of New Zealand citizens seeking to enter Australia.  Therefore it is said that repugnancy exists between the provisions for the character test in s 501(6)(b) and that section. 

16                  The provisions for special category visas were inserted into the Act by the Migration Reform Act (1992) (Cth) on 1 September 1994.  The provisions for the character test, as now appearing in s 501(6), were inserted in their original form on 24 December 1992 by the Migration (Offences and Undesirable Persons) Amendment Act 1992 (Cth).  Those provisions were amended with effect from 1 June 1999 by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth) (‘the Amending Act’). 

17                  The repugnancy is said to arise from the fact that the provisions in s 501(6)(b) provide as a ground for not satisfying the character test that a person ‘has or has had an association’ with another person or group or organisation ‘whom the Minister reasonably suspects has been or is involved in criminal conduct’.  However, it is said that in s 32 it is sufficient that the applicant is not, relevantly, ‘a behaviour concern non-citizen’.  The definition of behaviour concern non-citizen does not include the element of ‘association’. 

18                  In support of these submissions the applicant relies upon the maxim generalia specialibus non derogant and it is said the general provisions introduced in the Amending Act should not be construed so as to repeal by implication the earlier and specific provisions concerning New Zealand citizens contained in s 32:  Graham v Deputy Chief of Air Force [2004] FCA 1377 at [40]; Goodwin v Phillips (1908) 7 CLR 1 at 14. 

19                  It is further submitted that if the maxim is not applied the definition of ‘behaviour concern non-citizen’ will be rendered otiose and redundant.  It is also submitted that if the construction which the applicant advances is not accepted then there is a potential absurdity in that he could be refused a visa within Australia by application of s 501(1) but be required to leave in circumstances where his visa was cancelled pursuant to s 501(2), a section which it is accepted is contingent upon passing the character test. 

20                  The applicant’s submissions on the issue of repugnancy were supported by reference to Hoffman v Chief of Army [2004] FCAFC 148 at [12] – [16], per Black CJ, Wilcox and Gyles JJ and at [217] per Lindgren J.  It is clear from those passages, and from the citation therein of the statement by Deane J in Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-Stock Corporation (1980) 29 ALR 333 at 347, that the maxim operates only where there is a repugnancy between the general provision of a statute and provisions dealing with a particular subject matter, so that the latter should prevail. 

21                  I agree with the submissions for the respondent that there is no relevant repugnancy upon which the maxim can be invoked in relation to the present issue.  This is made patent by the provisions of s 65 of the Act.  It is there stated in s 65(1)(a)(iii) that the Minister must be satisfied that the grant of the visa is not prevented by the special power to refuse or cancel contained in s 501 of the Act.  That is in addition to and separate from the Minister being satisfied of other criteria prescribed by the Act or the Regulations as referred to in s 65(1)(a)(i) and (ii).  It is within sub-par (ii) that the provisions of s 32 would fall. 

22                  The separateness of s 32 and s 501 is highlighted not only by the provisions of s 65(1)(a)(iii) but also by the fact that the former is discretionary and the latter mandatory.  They operate in different statutory environments.  It is clear that the latter has work to do separate from the former. 

23                  It follows, no repugnancy being apparent, that there is no basis for upholding this first ground of review. 

effect of the decision quashing the minister’s prior decision

24                  The second contention advanced by the applicant is that when, on 1 July 2003, French J set aside the decision of the Minister cancelling the applicant’s visa made on 26 November 2002, the result was that the applicant still held that visa.  There are two limbs to this submission.  The first is that as a consequence when the applicant left Australia on 19 January 2004 he did not hold a visa because French J had not then set aside the Minister’s decision.  The second is that when he entered Australian territory on his way back to Sydney he again became a visa holder before he entered the migration zone so that he entered Australia with permission to remain. 

25                  Each of these contentions raised again the issues that were dealt with by me on the application for interlocutory relief in the reasons which I delivered on 22 March 2004.  The appeal from those reasons was dismissed. 

26                  Subject to what follows, I do not propose to set out those matters in extenso again.  I rely on the reasons previously given on 22 March 2004 which reflect my present views in response to the submissions remade here. 

27                  There were two matters which the applicant suggested may lead, however, to a different conclusion.  The first was s 15 of the Act, which provides:

‘To avoid doubt, subject to subsection 13(2) (certain inhabitants of protected zone), if a visa is cancelled its former holder, if in the migration zone, becomes, on the cancellation, an unlawful non-citizen unless, immediately after the cancellation, the former holder holds another visa that is in effect.’

However, in his reasons at [78], French J made it clear that the result of the respondent’s error was that he had failed to effectively exercise the power of cancelling the applicant’s visa.  Section 15 cannot assist the applicant, because it is contingent on the occurrence of cancellation and his Honour found that had not occurred.

28                  The second matter was that the applicant’s submissions drew a distinction between the applicant’s entry to Australia and his entry to the migration zone.  However that was unsupported by any evidence as to whether there was a lack contiguity between the two.  Nevertheless, the submission was entirely dependent on the view that when the applicant departed from Australia, s 82(8) of the Act had not had the consequence that the applicant’s visa ceased to be in effect.  In my reasons delivered on 22 March 2004, which I have stated express my present views, I held to the contrary.  It was not, therefore, open for the applicant’s visa to ‘revive’ upon his entry to Australia or the migration zone whether or not they are contiguous. 

29                  This ground therefore cannot succeed.

procedural fairness

30                  As has been seen, the delegate of the respondent recorded in his decision record that he accepted ‘that the intelligence from law enforcement agencies is credible and reliable’.  The applicant submits that the basis on which the respondent’s delegate reasonably suspected that the Rebels outlaw motor cycle gang had been involved in criminal conduct and that the applicant had an association with that group or organisation was never articulated or put to the applicant for him to deny.  The applicant infers that the basis must derive from the protected information.  This is because, contrary to what was stated in the decision record of the delegate, there was no evidence of any admission by the applicant that he was a member of the Rebels outlaw motor cycle gang at the time of the interview with the delegate.  Rather, the evidence was that he had been such a member in the past. 

31                  The provisions relating to protected information contained in the Act were amended by the Migration Legislation Amendment (Protected Information) Act 2003 (Cth).  This matter falls into the transition period between the new and old provisions.  However, this has no effect on the outcome.  While s 503A(9) was repealed and substituted, the change was only to alter the definition of a gazetted agency.  The intention of the change was not to remove the protection from the information which had been provided by agencies which had been specified as gazetted agencies under the old provisions.  Parliament’s intention was not to repeal the existing specification of gazetted agencies, but to clarify the specification of agencies. 

32                  The provisions of s 503A provide that if information is protected information, an officer must not divulge or communicate the information to another person, except where the other person is the Minister or an authorised migration officer and the information is divulged or communicated for the purposes of the exercise of a power under s 501A, s 501B or s 501C of the Act.  Provision is made in s 503A(3) for the Minister, by writing, to declare that the prohibitions on divulging and communication in s 501, s 503A(1) and (2) do not prevent the disclosure of specified information in specified circumstances to a specified Minister, a specified Commonwealth officer, a specified court or a specified tribunal.  However, before making such a declaration, the Minister must consult the gazetted agency from which the information originated.  Section 503A(3A) provides that the Minister does not have a duty to consider whether to exercise a Minister’s powers under subs (3).  Section 503A(6) provides that the section has effect despite anything in any other provision of the Act other than s 503B and s 503C and any law (whether written or unwritten) of a State or a Territory. 

33                  In Minister for Immigration & Multicultural & Indigenous Affairs v Ball [2004] FCAFC 91, Jacobson and Bennett JJ said at [82]:

‘Where the decision under s 501 is made by a delegate of the Minister who is an authorised migration officer, the express prohibition has the effect of depriving the person whose visa is under consideration of the right to know that information.’

‘The express prohibition’ there referred to was that in s 503A(2).  At [91] their Honours stated:

‘The obligation to afford common law natural justice or procedural fairness is controlled by the statutory framework but exclusion must be made clear in direct terms:  Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [43] per Gleeson CJ and Hayne J; at [90] per Gaudron J; at [126] – [128] per McHugh J; at [181] per Kirby J; Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at [30] and [37] per Gleeson CJ.  In respect of s 503A, in our opinion, that intention is clear.’

At [30], Dowsett J accepted that the provision in s 503A(3) permitting the Minister to authorise disclosure in some circumstances was a provision entirely within the discretion of the Minister.  His Honour was of the view that if the source of an obligation to disclose was the implied term in s 501(2) then, by virtue of s 503A(6), that obligation must, to the extent of any inconsistency, give way to the terms of s 503A(2)(c).

34                  In the case of the applicant, the source of the implied obligation would arguably rest in s 501(1).  However, there is no basis in principle why the reasoning of their Honours in Ball on the effect of s 503A(2) read in its context including the presence of s 503A(6) would not have the same effect in relation to s 501(1).  Accordingly, there was no obligation on the respondent to accord procedural fairness by taking any steps to divest the information referred to by the delegate of the protection accorded to it by s 503A.  The challenge based on procedural fairness is therefore unable to be made out. 

multiplicity of decisions

35                  The notice of intention directed to the applicant and dated 26 July 2001 related to consideration being given to cancelling his visa under s 501(2) of the Act.  It was there stated that the relevant grounds were those stated in ss 501(6)(a), 501(6)(c)(i), 501(6)(c)(ii), 501(6)(d)(ii) and 501(6)(d)(v).  No reference was made to the application of s 501(6)(b).  It is said, therefore, that the Minister is not able to rely on it subsequently in the absence of fresh circumstances. 

36                  This ground of review is not advanced by way of estoppel or waiver.  Indeed, it is not clearly identified as falling within any particular category of law.  Rather, it is advanced on the basis that a proper understanding of s 501 of the Act mandates that approach.  The submission is that the matters listed in s 501(6) of the Act require the respondent to identify on the occasion of the exercise of the power under s 501(1) to refuse to grant a visa which grounds are relied upon and to adhere to that on a subsequent application where there have been no changes in circumstance. 

37                  On a plain reading of the power in s 501(1) there is no language to support construing the power which there appears as so constricting the Minister or delegate exercising it.  There is no basis in the section or the Act for implying such a limitation.  In Ansett Transport Industries (Operations) Pty Limited (1977) 139 CLR 54 at 74, Mason J, citing Ayr Harbour Trustees v Oswald (1883) 8 App Cas 623, said ‘there is a general principle of law that a public authority cannot preclude itself from exercising important discretionary powers or performing public duties by incompatible contractual or other undertakings’.  The same principle is relevant to an argument that such a limitation should be implied. 

38                  In any event, there are important potential factual limitations to the application of any such interpretation.  Here, for example, the two applications considered by the respondent and the respondent’s delegate are substantially separated in time.  Whether or not there has been any change in circumstances is a matter of evidence and judgment. 

39                  The difficulties in the application of such an interpretation are a further inhibition to any implication such as the applicant contends for. 

40                  Therefore I do not consider that this ground can succeed. 

conclusion

41                  For these reasons I consider that the application for review should be dismissed.

Associate:

Dated:              17 December 2004