FEDERAL COURT OF AUSTRALIA
Moran v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 242
MIGRATION – Judicial review – New Zealand citizen – Cancellation of visa – Cancellation by Minister personally – Reasons for decision – Entitlement to – Whether failure to give reasons constitutes a ground of review – Effect of delay in seeking reasons – Reasons not sought before substantive application to Court for constitutional writs – Whether decision vitiated by Minister’s failure to have regard to the fact that by making the decision personally he would preclude applicant from “merits review” by Administrative Appeals Tribunal – Whether power of deportation conferred by s 200 impliedly cut down power of cancellation under s 501 – Whether applicant held an “absorbed person visa” – Discretion of Court to grant relief.
Migration Act 1958 (Cth
Migration Act 1958 (Cth) (reprint No. 4 as at 31 January 1994) ss 6, 20
Migration Amendment Act 1983 (Cth) s 8(2)
Acts Interpretation Act 1901 (Cth) s 46(1)(a)
Migration Reform Act 1992 ss 40(1), 48
Migration Regulations 1994, reg 2.54
Migration Reform (Transitional Provisions) Regulations 1994, regs 4, 16, and 17
Nguyen v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 19
Akparta v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65
Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 213 ALR 379
Powell v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 717
Le v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 521
Jones v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 70
Applicant A184 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 543
Johnson v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 494
Hicks v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 427
Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 121
Hoffman v Chief of Army (2004) 137 FCR 520
Refrigerated Express Line A/Asia (Pty Ltd) v Australian Meat and Live-stock Corporation (1980) 29 ALR 333
Smith v The Queen (1994) 181 CLR 338
Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 66 FCR 511
Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433
Minister for Immigration and Ethnic Affairs v Tavelli (1990) 23 FCR 162
Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1069
Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541
Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292
Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178
Re Patterson; Ex parte Taylor (2001) 207 CLR 391
Shaw v Minister for Immigration and Multicultural Affairs (2003) 78 ALJR 203
R v Forbes; Ex parte Kwok Kwan Lee (1971) 124 CLR 168
Al-Kateb v Godwin (2004) 208 ALR 124
Koon Wing Lau v Calwell (1949) 80 CLR 533
R v MacKellar; Ex parte Ratu (1997) 137 CLR 461
Tjandra v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 577
Yong v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 566
Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364
Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757
Griffiths v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 249
Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505
Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
Bridges v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 456
Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 959
Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 176 ALR 79
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
S58 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 451
Re Commonwealth; Ex parte Marks (2000) 177 ALR 491
Re Refugee Tribunal; Ex parte Aala (2001) 204 CLR 82
NAUV v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 124
Hicks v Nixon (2004) 138 FCR 32
Diep v Minister for Immigration and Multicultural Affairs [2001] FCA 1130
Javillonar v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 311
Adams v Minister for Immigration and Multicultural Affairs [2001] FCA 552
Ruhl v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 401
Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327
Re Minister for Immigration and Multicultural Affairs; ex parte Te and Dang (2002) 212 CLR 162
Shaw v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 402
Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
JOHN JOSEPH MORAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
VID 1248 of 2004
RYAN J
17 MARCH 2006
MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 1248 of 2004 |
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BETWEEN: |
JOHN JOSEPH MORAN Applicant
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AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
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RYAN J |
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DATE OF ORDER: |
17 MARCH 2006 |
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WHERE MADE: |
MELBOURNE |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent’s costs, to be taxed in default of agreement.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 1248 of 2004 |
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BETWEEN: |
JOHN JOSEPH MORAN Applicant
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AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
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JUDGE: |
RYAN J |
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DATE: |
17 MARCH 2006 |
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PLACE: |
MELBOURNE |
REASONS FOR JUDGMENT
Introduction
1 There is before the Court an amended application pursuant to s 39B of the Judiciary Act 1903 (Cth) to review the decision made by the respondent Minister (“the Minister”) on 15 December 2000 to cancel the visa held by the applicant pursuant to s 501(2) of the Migration Act 1958 (Cth) (“the Act”). The applicant seeks the issue of writs of certiorari and mandamus to the Tribunal and any necessary extension of time to enable him to obtain the issue of the said constitutional writs.
Background facts
2 The applicant was born in New Zealand in 1934. He first travelled to Australia in about 1960. He stayed in Australia for several years during which time he was convicted, on two separate occasions, of the offences of “play unlawful game (banker)” and “steal from a person” for which he was sentenced to two months imprisonment fully suspended and a term of imprisonment of four years respectively.
3 In 1965 the applicant returned to New Zealand and remained there for seven years. He married his present wife in 1967 and she has borne him two children. He was convicted of minor offences in New Zealand in 1972. In 1969 or 1970 the applicant passed through Australia on a journey from New Zealand to the United States.
4 The applicant gave evidence at the hearing that he cannot recall precisely when he returned to Australia to live in Sydney but that he travelled to Australia once only and that his family followed a matter of weeks later. Records kept by the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) indicate that a “John Joseph Moran” arrived on May 24 1972. However, the applicant’s wife and sons deposed that they travelled to Australia with the applicant and arrived on 28 January 1973. The applicant and his family have resided in Australia since their arrival. The applicant’s wife and sons have become Australian citizens.
5 In 1978 the applicant was convicted of “stealing s501 (retail store)”. The sentence was recorded as “sentence if call on 3 years begin 16/12/1978”.
6 The Department’s movement records indicate that the applicant left Australia on 4 March 1984 for a vacation in Thailand. (On being shown Departmental records, the applicant conceded that it had been early in March and not late February as asserted in his affidavit, that he had left for Thailand.) On his return to Sydney Airport the applicant was not permitted to re-enter Australia.
7 Having been refused entry to Australia at Sydney Airport, the applicant purchased a ticket and travelled to New Zealand. He later returned to Australia on a merchant vessel of unknown name which berthed in Hobart. The applicant then immediately returned to Sydney. (In his affidavit, the applicant deposed to having returned by boat within a matter of weeks. However, at the hearing he gave evidence that his return had occurred within days explaining that he had not read the affidavit properly.) Although unsure of the various dates, the applicant was adamant that he had returned to Australia before 2 April 1984. He gave evidence at the hearing that he had determined this by calculating backwards from the date on which he was shown to have left Australia knowing that he had spent between seven and eight days in Thailand and three to five days in New Zealand. It apparently takes merchant ships three days to travel between New Zealand and Australia.
9 By letter dated 8 June 2000 the applicant was given notice of intention to cancel his visa. Detailed submissions were made on behalf of the applicant in response to that notice.
10 The applicant was released from prison on 5 December 2000. On 15 December 2000 the Minister cancelled his visa. The applicant was taken into immigration detention on 31 January 2001. He did not challenge the decision to cancel his visa and left Australia for New Zealand on 17 February 2001. He then returned to Australia by ship travelling to Brisbane and resumed living in Sydney where he was reunited with his family.
11 On 20 November 2003 the applicant was arrested in Bendigo and charged with involvement in further drug offences. He was denied bail.
12 On 23 April 2004 the applicant was informed that he was also being detained as a suspected unlawful non-citizen. In relation to the drug offences with which he had been charged, he was sentenced on 18 February 2005 to be imprisoned for three years with a non-parole period of 18 months. The applicant claims that, taking into account the period during which he had been imprisoned before sentence, the non-parole period expired on 8 May 2005 and he has been solely in immigration detention since that date. On the other hand, it is asserted on behalf of the Minister that, having declined to apply for parole, the applicant continues to serve the sentence imposed on 18 February 2005.
The Minister’s decision
13 At some point before the Minister’s decision to cancel the applicant’s visa on 15 December 2000, the Minister had been provided with an issues paper prepared by a case officer in the Department seeking his decision on whether Mr Moran passed the character test imposed by s 501(6) of the Migration Act; and, if not, whether his visa should be cancelled pursuant to s 501(2) of the Migration Act.
14 The issues paper directed the Minister’s attention to the provisions of s 501 of the Act and the offences for which the applicant had been convicted and sentenced.
15 The issues paper advised the Minister that it would be open to him to find that:
‘There is a reasonable suspicion that Mr Moran does not pass the character test due to the fact that he has been sentenced to 12 months or more in prison.
…
It is submitted that due to Mr Moran’s most recent criminal conviction he is unable to pass the character test under s 501(6)(a) because he has a substantial criminal record as defined in subsection 501(7)(c).’
16 Next, the Minister was advised that, if he were satisfied that the applicant did not pass the character test, he would have to consider, in the exercise of his discretion, whether the applicant should be permitted to remain in Australia. He was advised that s 501 of the Act provided him with a discretion to cancel the visa. The Minister was advised:
‘In exercising your discretion you should consider the guidelines of your Direction No 17 made under section 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’
17 The Minister was provided with a copy of the applicant’s response to the notice of intention dated 8 June 2000 to cancel the applicant’s visa.
18 The issues paper then addressed the primary considerations to which the Minister was required to have regard. First, it drew the Minister’s attention to the need for protection of the Australian community and, in that regard, the seriousness and nature of the conduct for which the applicant had been convicted and sentenced. The issues paper recited paragraph 2.6 of Direction No. 17 (“the direction”). It drew the Minister’s attention to the sentencing remarks made by a Judge of the New South Wales District Court when passing sentence on the applicant.
19 The issues paper also drew the Minister’s attention to the factors which might bear upon the likelihood of the applicant’s conduct being repeated including any risk of recidivism. It drew the Minister’s attention to other relevant statements and, in particular, submissions on behalf of the applicant. Next, the issues paper addressed questions of general deterrence.
20 The next primary consideration addressed in the issues paper was the expectations of the Australian community. The issues paper set out paragraph 2.12 of the direction. The issues paper also addressed the best interests of the children and other considerations.
21 In regard to other considerations the issues paper stated:
‘OTHER CONSIDERATIONS
41) Mr Moran arrived in Australia when he was 38 years old. As such, he spent no formative years in Australia, nor did he do any of his schooling here. He however has spent the last 28 years in Australia.
His wife is suffering from a serious medical condition and receives treatment from a specialist in Australia. Mr Moran’s solicitor has submitted two letters from doctors which state that Mrs Moran is unfit to travel by air. Mrs Moran stated in her interview that she would try to return to New Zealand with her husband should he be removed.
Mr Moran’s family have submitted letters of support, stating that they are a close knit family and they would be distraught if he were removed from Australia. Mr Moran has no family in New Zealand and he would find it difficult to settle back into New Zealand society if his family did not return with him.’
22 The issues paper provided for a “PART E: DECISION” by reciting:
‘I have considered all relevant matters including (1) an assessment of the Character Test within the meaning of s501 of the Migration Act 1958, (2) the Minister’s Direction No. 17 made under s499 of the Act and the non-citizen’s comments (if any), and have decided that:
(Please delete whichever is not applicable)
(a) The non-citizen does not pass the character test, has been unable to satisfy me that he does not pass the character test and in the exercise of my discretion, I CANCEL the visa.
(b)
The non-citizen does not pass the
character test, has been unable to satisfy me that he does not pass the
character test, however, I DO NOT exercise my discretion to cancel the visa.
(c) The
non-citizen passes the character test and the visa is not cancelled.’
23 On 15 December 2000 the Minister apparently deleted paragraphs (b) and (c) and signed the decision.
Legislation
24 Section 501 of the Act provides:
‘501 Refusal or cancellation of visa on character grounds
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
(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)); or
(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character; or
(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test.
(7) 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.’
25 Section 501G of the Act provides:
‘501G Refusal or cancellation of visa – notification of decision
(1) If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B or 501F to:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person;
the Minister must give the person a written notice that:
(c) sets out the decision; and
(d) specifies the provision under which the decision was made and sets out the effect of that provision; and
(e) sets out the reasons (other than non‑disclosable information) for the decision; and
(f) if the decision was made by a delegate of the Minister under subsection 501(1) or (2) and the person has a right to have the decision reviewed by the Administrative Appeals Tribunal:
(i) states that the decision can be reviewed by the Tribunal; and
… … …
(3) A notice under subsection (1) must be given in the prescribed manner.
(4) A failure to comply with this section in relation to a decision does not affect the validity of the decision.’
26 Regulation 2.54 of the Migration Regulations 1994 which were in force on 15 December 2000, the date of the cancellation decision, provided:
‘Reg 2.54 Notification of decisions (Act, s 501G)
(1) This regulation applies to the manner of giving notice under subsection 501G (1) of the Act.
(2) If the person to whom notice is given was a visa applicant when the decision to which the notice relates was made, the notice must be:
(a) served personally on the person; or
(b) posted to the person at his or her address last given to the Minister under section 53 of the Act.
(3) If the person is a former visa holder who held the visa for less than 1 year when the decision was made, the notice must be:
(a) served personally on the person; or
(b) posted to the person at his or her address last given to Immigration by the person.
(4) If the person is a former visa holder who held the visa for at least 1 year when the decision was made:
(a) Immigration must try to find the person; and
(b) either the notice must be:
(i) served personally on the person; or
(ii) posted to the person at the address found by Immigration or the person’s address last given to Immigration by the person.’
27 Before 2 April 1984, the preamble to the Act declared that it was an Act relating to “immigration, deportation and emigration”. With effect from 2 April 1984, the preamble was amended by the Migration Amendment Act 1983 to provide that the Act related to:
‘Entry into, and presence in, Australia of aliens and the departure or deportation from Australia of aliens and certain other persons’
28 Section 32 of the Act (as in force from 1 September 1994) provides:
‘Special category visas
(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.
29 Section 34 of the Act (as in force from 1 September 1994) provides:
‘Absorbed person visas
(1) There is a class of permanent visas to remain in, but not re-enter, Australia, to be known as absorbed person visas.
(2) A non-citizen in the migration zone who:
(a) on 2 April 1984 was in Australia; and
(b) before that date, had ceased to be an immigrant; and
(c) on or after that date, has not left Australia, where left Australia has the meaning it had in this Act before 1 September 1994; and
(d) immediately before 1 September 1994, was not a person to whom section 20 of this Act as in force then applied;
is taken to have been granted an absorbed person visa on 1 September 1994.’
30 Immediately before 1 September 1994, “leaving” Australia was dealt with by s 4(8) of the Act which provided:
‘For the purposes of this Act, a person shall be deemed to have left Australia if he or she has gone outside the territorial limits of Australia’
31 Also immediately before 1 September 1994, s 20 of the Act (“the old Act”) relevantly provided:
‘Circumstances in which non-citizens may become illegal entrants
20(1) This subsection applies to a person, being a non-citizen, who has entered Australia, whether before or after the commencement of this section, if:
(a) the person has ever evaded an officer for the purpose of entering Australia; or
(b) when, or before, the person entered Australia on any occasion, he or she:
(i)produced, or caused to be produced, to an officer or a person exercising powers or performing functions under this Act, in respect of that entry:
(A) …
(B) a passenger card containing information that was false or misleading in a material particular …
… …
(d) on any occasion when the person entered Australia, the person was:
(i) …
(ii) a person who had been convicted of a crime and sentenced to death, to imprisonment for life or to imprisonment for a period of at least one year…’
‘(1) On entering Australia, a non-citizen becomes an illegal entrant unless:
(a) he or she is the holder of a valid entry permit; or
(b) the entry was authorised by section 17.
(2) Where a person to whom subsection 20(1) applies has entered Australia (whether before or after the commencement of this section) then, at and after that commencement, or that entry, whichever is later, the person is an illegal entrant at any time while he or she:
(a) remains in Australia;
(b) is not a citizen; and
(c) does not hold a properly endorsed valid entry permit or a properly endorsed valid entry visa’
‘New Zealand citizens in Australia
17.(1) This regulation applies to a non-citizen who:
(a) is a New Zealand citizen; and
(b) either:
(iii) was in Australia lawfully immediately before 1 September 1994; or
(iv) was, immediately before 1 September 1994, an illegal entrant because of section 20 of the old Act; and
(c) is not taken to hold:
(iii) a transitional visa under Part 2 or 3; or
…
(iv) a special purpose visa; or
(v) an absorbed person visa; and
(d) was not the subject of a deportation order immediately before 1 September 1994.”
(2) A non-citizen to whom this regulation applies is taken to have been granted a special category visa on 1 September 1994.
34 Regulation 4 of theMigration Reform (Transitional Provisions) Regulations 1994 provided:
‘Entry permits in force before 1 September 1994 to continue in effect
(1) 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.’
Applicant’s submissions
Application for mandamus (Minister’s failure to comply with s 501G)
35 In his affidavit sworn 4 October 2004, the applicant deposed that he had been informed by letter dated 15 December 2000 of the Minister’s decision to cancel his visa. He asserted, however, that he had not been provided with reasons for the Minister’s decision.
36 The applicant also deposed that on 7 September and 17 September 2004 he had personally requested a statement of reasons and other documents relating to the decision as referred to in s 501G(1)(e) but that no statement of reasons has been provided.
37 Counsel for the applicant submitted that whether the document received satisfied s 501G(1)(c)-(e) is a question of fact; Nguyen v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 19, Akparta v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65, Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 213 ALR 379, Powell v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 717, Le v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 521, Jones v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 70 at [31]. It was submitted that assuming, contrary to his affidavit, that he had been given a copy of the issues paper, it did not set out reasons as required by s 501G(1)(e).
38 According to the applicant’s submissions, the issues paper failed to identify the visa which the Minister purported to cancel and it is an essential pre-requisite for a valid exercise of the power conferred by s 501(2) that the Minister identify, or have some understanding of, the visa which he intends to cancel. It was submitted that this is particularly so in the applicant’s case as he is a New Zealand citizen, a long term resident in Australia and the holder of an absorbed person visa; (see the submissions summarised below at [41]-[60]).
Application for extension of time
39 Counsel for the applicant submitted, first, that he does not require an extension of time as O 54A of the Federal Court Rules does not prescribe a period within which proceedings pursuant to s 39B of the Judiciary Act 1903 (Cth) must be commenced. It was noted that a decision like that which is the subject of the present application, which had been made before 2 October 2001 but in respect of which an application for judicial review had not been lodged at that date, is to be governed by the Act as amended on that date. Part 8A of the Act provides that an application for judicial review must be made within35 days of the actual notification of decision. Counsel for the applicant submitted, in the alternative, that, as the issues paper does not satisfy the requirements in s 501G(1)(c)-(e), the applicant never received the notification required by s 501G(3), so that time did not commence to run in relation to review of the decision and his application for certiorari is accordingly within time.
40 In the further alternative, Counsel submitted that the Court has power to extend time pursuant to O3 r3 of the Federal Court Rules and ought to do so in order to ensure that justice is done between the parties; (see Applicant A184 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 543 at [62]-[71]). In the applicant’s submission, the fact that the duty imposed by s 501G(1) remains to be performed explains any delay on his part which might arguably constitute a discretionary ground for refusing relief. The applicant submitted that, if necessary, the Court’s discretion should be exercised to extend the relevant time for instituting the application.
The applicant’s visa status
(a) Absorbed person
42 First, it was said, he was present in Australia on 2 April 1984 and therefore satisfied s 34(2)(a) of the Act. Next, in support of the contention that he met the criteria for an absorbed person visa, the applicant referred to the factors which French J in Johnson v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCR 494 identified as relevant to whether a person has ceased to be an immigrant pursuant to s 34(2)(b). At [46] his Honour opined that the factors included, but were not limited to, the following:
‘1. The time that has elapsed since the person’s entry into Australia.
2. The existence and timing of the formation of an intention to settle permanently in Australia.
3. The number and duration of absences.
4. Family or other close personal ties in Australia.
5. The presence of family members in Australia or the commitment of family members to come to Australia to join the person.
6. Employment history.
7. Economic ties including property ownership.
8. Contribution to, and participation in, community activities.
9. Any criminal record.’
43 The applicant submitted that a significant period of time has elapsed since he first entered Australia. He had lived in Australia between 1960 and 1964 and returned to live in this country on 24 May 1972. In the applicant’s submission, those periods of residence in combination demonstrate a commitment to reside in Australia. It was further contended that his eight year absence from Australia between 1964 and 1972 did not preclude him from being an absorbed person as he had, since 1960, lived in Australia for sixteen out of the total of 24 years between 1960 and 1984.
44 The applicant’s intention to reside permanently in Australia from 1972 was said to have been corroborated by the fact that his wife and children had joined him in Australia in 1972 and, moreover, had become permanent Australian residents on 2 April 1984. They are now Australian citizens. The applicant also pointed to the fact that, throughout his periods of residence in Australia, he has been employed in the racing industry. His contribution to that industry was said to demonstrate a commitment to community activity in this country. In relation to economic ties, including property in this country, the applicant submitted that he has not acquired property in Australia because of insufficient income. It was submitted that this factor is not fatal to a finding that the applicant is an absorbed person.
45 For the purposes of considering the applicant’s criminal record, the relevant date was said to be 2 April 1984 which is stipulated in s 34(2)(b) of the Act because, in the applicant’s submission, he ceased to be subject to the Act after that date. Accordingly, it was said, any convictions thereafter are not relevant. Prior convictions in New Zealand were similarly said to be irrelevant to whether the applicant has been absorbed into the Australian community.
46 Consequently, the applicant contended that his status as an absorbed person should be determined solely by reference to convictions in 1960, 1964 and February 1978. It was submitted that the first two convictions of “play unlawful game (banker)” and “steal from a person” had been recorded more than 20 years before the relevant date and were not sufficient on their own to preclude a finding that the applicant has been “absorbed”, particularly when weighed against his family circumstances and the length of time that has elapsed since his most serious conviction in 1964.
47 The applicant contended that, for the purposes of determining whether he had left Australia on or after 2 April 1984, the critical date is 1 September 1994 and any subsequent departure (such as the purported removal on 17 February 2001) is not relevant. Consequently, it was contended, the applicant is not a person who had left Australia within the meaning of s 34(2)(c) of the Act.
48 The applicant further submitted that he was not precluded by s 34(2)(d) from obtaining an absorbed person visa as he was not a person to whom s 20 of the old Act applied. Section 20 set out the circumstances in which non-citizens might become illegal entrants. In particular, s 20(2)(d) provided that a non-citizen might become an illegal entrant where, on any occasion on which the person had entered Australia, he or she had been convicted of a crime and sentenced to imprisonment for a period of at least one year; (see [31] of these reasons).
49 The applicant acknowledged that, as outlined at [32] and [33] above, an entry permit was taken to be cancelled when a person became an illegal entrant by the operation of ss 20(1) and 14(2) of the Act. However, it was contended that, before 1 September 1994, New Zealand citizens had been exempt from the requirement in s 14(1) that a non-citizen hold a valid entry permit. Consequently, so the argument went, s 20 did not address the circumstances of New Zealanders for whom s 16 made special provision by providing;
‘Minister may declare exempt non-citizens to be undesirable
The Minister may, in writing, declare in relation to an exempt non-citizen that it is undesirable that the exempt non-citizen be permitted to enter Australia or to remain in Australia’
50 It was further submitted that, notwithstanding the purported retrospective operation of s 20(1), it cannot be construed to apply to the applicant’s return to Australia on 24 May 1972 which occurred under an entirely different statutory regime. As well as producing an absurd result, that construction, it was contended, would work an injustice because the applicant could not have known, when he departed from Australia in 1965, what consequences would be attached to that departure by an enactment that did not commence until June 1989.
51 On behalf of the applicant it was acknowledged that the further sentence which he received in February in 1978 had been imposed in Australia. Nevertheless, it was submitted, his return to Hobart in March 1984 was not otherwise affected by s 20(1) of the Act. As well, it was contended that reg 17(1)(c)(v) of the Transitional Regulations (reproduced at [33] above) invalidly seeks to deny the legal effect of the applicant’s alleged absorbed person status. That contention seems, however, to be erected on a misunderstanding of reg 17. The regulation, I consider, operated to deem a non-citizen to have been granted a special category visa if the non-citizen was not taken to hold an absorbed person visa or one of the other visas specified in reg 17(1)(c)(iii) or (iv). It is therefore unnecessary, in my view, to consider further the applicant’s submissions on this issue.
52 For the applicant it was contended that, as an absorbed person when, on 2 April 1984, the Act came to be founded on the aliens power, he had ceased to be amenable to Parliament’s authority to make laws with respect to immigration. Accordingly, the submission proceeded, because he was not subject to the Act on that date, he did not thereafter become subject to it and so remains the holder of an absorbed person visa.
(b) The applicant’s absorbed person visa did not cease to be in effect when the applicant left Australia involuntarily on 17 February 2001
53 Mr Hurley of Counsel for the applicant acknowledged that, by s 34(1), the absorbed person visa is a class of permanent visa which permits a non-citizen to remain in, but not re-enter, Australia. (Section 82(8) provides that a visa to remain in but not to re-enter Australia ceases to be in effect if the holder leaves Australia.) However, Mr Hurley went on to submit that the decision in Hicks v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 427 is incorrect. In that case, a Full Court of this Court held that where a decision to cancel a visa is quashed (as the applicant contended should happen in this case), the decision has at all times been a nullity with the consequence that the applicant would have been taken to have held a visa when he left Australia on 17 February 2001.
54 In the applicant’s submission, the Court should construe the words “holder leaves Australia” in s 82(8) as referring only to a voluntary departure. His removal was an involuntary departure and subsequent conduct which gave effect to an invalid decision should not preclude the applicant from obtaining a constitutional writ in relation to the decision.
55 The applicant’s second submission was that the provision in s 82(8) that a visa “ceases to be in effect”, applies only where the visa is in existence at the moment when the “holder” leaves Australia. An alternative related submission was that, instead of finding jurisdictional error in the Minister’s decision to cancel the applicant’s visa, the Court should hold that the visa did not come to an end on the departure of the applicant on 17 February 2001 as, at that moment, he was not the “holder” of a visa. In support of this proposition, attention was drawn to the distinction between a “holder” and a “former holder” of a visa; see s 15 of the Act. The applicant therefore contended that he had not been the “holder” of a visa on 17 February 2001.
Jurisdictional error (Minister’s failure to identify the applicant’s visa)
57 The applicant submitted that a Full Court of this Court had recently held in Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 121, that the Minister had erred in purporting to cancel the applicant’s Transitional (Permanent) Visa, by failing to consider whether the applicant could have been the holder of an absorbed person visa within s 34 of the Act. The Full Court had also rejected the Minister’s submission that a decision to cancel one class of visa can be translated into a decision to cancel another class of visa. According to the applicant, Nystrom is authority for the proposition that failure to identify the visa to be cancelled under s 501(2) of the Act constitutes jurisdictional error.
58 The applicant relied on Nystrom as demonstrating that he could not have been granted a Transitional (Permanent) Visa because, on 1 September 1994, he was not the “holder” of any entry permit as the last entry permit he had held would have been granted to him when he arrived in Australia in 1972. At that time, the Act did not require him to “hold” any visa at all. This analysis was said to support his claim to hold an absorbed person visa.
59 Certain observations in Nystrom were also contended to support the applicant’s claim that he was taken to have been granted a special category visa on 1 September 1994 by virtue of reg 17(1) and (2) of the Transitional Regulations.
60 These submissions were relied on as supporting the applicant’s alternative claim that the Minister had never received adequate advice as to which visa the applicant held and had therefore not had occasion to identify which visa it was that he had purported to cancel. No such identification was to be found in the issues paper so the Minister had been given no guidance as to the type of visa he was purporting to cancel. There had, therefore, been a jurisdictional error constituted by the Minister’s failure to consider whether the applicant was the holder of an absorbed person visa.
Minister bound to consider consequences for the applicant of the Minister personally deciding to cancel
62 First, the applicant submitted that the then Minister had erred because he had decided to cancel the applicant’s visa without taking into account a relevant matter. It was submitted that the Minister had personally made a decision under s 501 without considering that one of the consequences for the applicant would be the loss of a right to merits review by the Administrative Appeals Tribunal. The applicant submitted that no similar loss of the right occurs where the Minister orders deportation under s 200 of the Act for the commission of a crime described in s 201. Such decisions are always subject to merits review unless the Minister makes a positive decision to issue a certificate under s 502(1)(a)(i).
63 The applicant submitted that the detailed preservation by Parliament of merits review of deportation for a crime unless the responsible Minister decides otherwise on the basis of national interest supports the view that the legislature did not intend that the review could be excluded by use of the general provisions in s 501. This consideration was said to entail that the consequences for an applicant of a decision to cancel a visa are clearly relevant to be taken into account in making the decision. Whether the Minister personally makes a decision or whether the decision is made by a delegate under s 501 is significant because of the profoundly different consequences for the applicant. In particular, whether an applicant is entitled to a review of that decision to cancel depends on whether the removal is enabled by s 201, s 202 or s 501. The applicant submitted that there is no evidence that the Minister considered this question. The failure of the Minister to consider the different consequences that would flow from his choice of the legislative avenue of cancellation was said to be a failure to take into account a relevant matter and therefore to constitute jurisdictional error.
Section 501 should be read down by reference to ss 200 and 201 of the Act
65 The applicant submitted that the material before the Minister invited him to find that the applicant did not pass the character test erected by s 501(6)(a) because he was caught by the “substantial criminal record” provisions in s 501(7). It was further submitted that the issues paper invited the Minister to proceed on the basis of the applicant’s conviction of 16 December 1999. In the applicant’s submission, however, the relevant deportation power conferred by s 200 of the Act was not applicable to the applicant by reason of s 201. Section 200 of the Act provides that the Minister may order the deportation of the non-citizen to whom the Division applies. Sub-paragraphs 201(b)(ii)(A) and (B) provide that s 200 only applies to a New Zealand citizen where “when the offence was committed” the person had been in Australia as an exempt non-citizen or special category visa holder for a period of less than ten years or as an exempt non-citizen or special category visa holder or combination of the two for periods that, when added together, amount to less than ten years in total.
66 The applicant’s contention was that the material before the Minister established that the applicant was not a person to whom s 200 could apply. The briefing paper demonstrated that the offence had been committed on 18 April 1999 and that the applicant had arrived in Australia as an exempt non-citizen on 24 May 1974 and had only departed on 4 March 1984. It was therefore submitted that he had been in Australia for a period that exceeded ten years when the offence to which the Minister’s attention had been drawn was committed on 18 April 1999.
67 The specific power conferred by s 201 to deport non-citizens was said to be the sole source of a deportation power to be found in the Act. The power conferred by s 501 to cancel a visa cannot, Mr Hurley contended, be construed so as to permit the Minister to achieve indirectly that which Parliament has provided cannot be achieved directly, that is, removal of a New Zealand citizen who has committed a relevant offence more than ten years after his or her arrival in Australia. This contention entailed that an Act must be construed so as to ascribe to each provision an exclusive, specific, task. Such a construction of the Act would not permit s 501 to authorise the cancellation of the applicant’s visa because, if it did, it would render ss 200 and 201 otiose. As those sections remain in the Act, the applicant submitted, they should be given their full and exclusive force in relation to deportation.
68 Counsel for the applicant also advanced the alternative, but related, submission that if ss 200 and 201 are capable of an operation which is inconsistent with the apparent intendment of s 501 they should prevail over the later, general provision. In support of this proposition, reference was made to Hoffman v Chief of Army (2004) 137 FCR 520 at [12]-[27] and Refrigerated Express Line A/Asia (Pty Ltd) v Australian Meat and Live-stock Corporation (1980) 29 ALR 333 at 347.
69 In support of the submission that the provisions in ss 200 and 201 are “specific” provisions and should prevail over a later general provision, the applicant relied on Smith v The Queen (1994) 181 CLR 338 and contended that here the later provision (s 501) was not itself so specific that it could retain a sphere of operation parallel to that of s 200; cf Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 66 FCR 511.
The Minister’s submissions
Application for mandamus (Minister’s failure to comply with s 501G)
71 It was accepted that s 501G of the Act imposes upon the Minister a statutory obligation to provide reasons for a decision made under, amongst others, s 501 and that obligation had not been complied with in the present case. However, the Minister’s failure to provide reasons was said to be explicable by the fact that the decision had been made in December 2000 when it was believed that the delivery of the issues paper to the applicant would discharge the duty imposed upon him by s 501G; see Howells v Minister for Immigration and Multicultural and Indigenous Affairs (supra) at [21]. It was not until the decision of a Full Court of this Court in Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433 esp at 445-446 in September 2002 that the Minister could have known that the procedure which he had adopted did not fulfil his statutory obligations under s 501G(1)(e).
72 Dr Donaghue of Counsel for the Minister accepted that there is no evidence before the Court which demonstrates what visa the Minister thought he was cancelling when he made the impugned decision. However, it was submitted, the Minister was clearly aware that the applicant was a citizen of New Zealand and a long term resident of Australia. There was no evidence before the Minister that the applicant had ever held an entry permit. Further, New Zealand citizens normally did not hold such permits. It followed that it should also have been clear that the applicant may have been in the country unlawfully (given that there was no record of his arrival after March 1984) and that he had a history of offending that would have prevented him from having been absorbed into the community.
73 Although those considerations did not excuse the Minister’s failure to comply with s 501G, Dr Donaghue urged that they explain it and negate any inference from the failure to provide reasons that there were not, in fact, any reasons for the decision. Rather, it was submitted, it should be inferred that the Minister considered that the applicant held a special category visa, that being the visa most likely to be held by a New Zealand citizen to whom s 20 of the old Act applied.
74 Dr Donaghue accepted that, ultimately, there is no way of knowing what visa the Minister thought the applicant held and which the Minister thus intended to cancel. In the absence of a statement of reasons, it is similarly not possible to contend that the Minister did, or did not, take any relevant considerations into account in exercising his discretion under s 501. There is, it was said, simply no basis for asserting that the Minister erred in making the decision of 15 December 2000. Counsel relied upon the High Court decision in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [46] in support of the contention that a failure to give reasons cannot, of itself, amount to a jurisdictional error.
75 Counsel for the respondent referred to the express provision in s 502G(4) of the Act that “A failure to comply with this section in relation to a decision does not affect the validity of the decision” and submitted that, notwithstanding the admitted failure to comply with s 501G, the Court should not order the respondent to provide reasons. The application must fail because the applicant had not sought an order requiring the Minister to give reasons before the hearing of the application for judicial review. That failure made applicable the observations of the Full Court in Howells v Minister for Immigration and Multicultural and Indigenous Affairs (supra), at [58]-[59].
76 In the second place, it was contended that, even if an order for the provision of reasons had been sought on an interlocutory basis, it should have been refused. Mandamus is a discretionary remedy and ought not to be granted where the Minister who made the decision is no longer the relevant Minister (and therefore not a party to the proceeding) and in spite of the applicant’s four year delay in bringing the proceedings as a consequence of his deliberate decision to circumvent Australian law and re-enter this country surreptitiously immediately after his removal rather than challenge the decision to cancel his visa. The lapse of time makes it improbable that the Minister could now provide meaningful reasons; (see Minister for Immigration and Ethnic Affairs v Tavelli (1990) 23 FCR 162 at 178-179; Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1069 at [62]-[67].) That makes it likely that the court would reject as a reconstruction any reasons now furnished or, at best, give them little weight; (see Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541 at [64]-[67], [69]; Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292, (2004) 206 ALR 488, at [40]-[43]).
The applicant’s visa status
(a) Distinction between “immigrant” and “alien”
77 Counsel for the Minister drew a distinction between “immigrants” and “aliens” and acknowledged that, before 2 April 1984, it was possible to escape the reach of the Act by being absorbed into the community and thereby ceasing to be an “immigrant”. After the April 1984 amendments, however, the Act applied to any non-citizen, whether or not the non-citizen was an “immigrant” or had ceased to be an immigrant by being “absorbed into the community”. It was acknowledged that it is possible to cease to be an immigrant for constitutional purposes by being “absorbed into the Australian community”; see Re Minister for Immigration and Multicultural Affairs; Ex parte Te and Dang (2002) 212 CLR 162. However, it was submitted, the High Court has made it clear that it is not possible to cease to be an alien by “absorption” or by any means other than naturalisation. Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 was cited in support of this submission. It was held in that case that any immigrant who has not taken out Australian citizenship is an alien for the purpose of s 51(xix) of the Constitution. Nolan was departed from in Re Patterson; Ex parte Taylor (2001) 207 CLR 391, but was later held in Shaw v Minister for Immigration and Multicultural Affairs (2003) 78 ALJR 203 to be capable of continued application. The High Court in Shaw declined to follow Re Patterson. Counsel for the Minister also referred to Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Te (2002) 212 CLR 162 at 176, 179-181 and 229.
78 According to the Minister, as the applicant has not been naturalised, he is clearly an “alien” for constitutional purposes. As an alien, it was submitted, he was subject to the operation of the Act as illustrated by s 8(2) of the 1983 Migration Amendment Act 1983 which expressly contemplated that some persons who had ceased to be subject to regulation under the old Act (because they had ceased to be immigrants) would, from 2 April 1984, be regarded as “prohibited non-citizens”.
(b) Absorbed person visa
79 Counsel for the Minister submitted that whether the applicant had ceased to be an immigrant by 2 April 1984 is not relevant to whether the Act is capable of applying to him. It became an issue only because ceasing to be an immigrant before that date is one of the four statutory criteria that s 34(2) specifies for the grant of an absorbed person visa.
80 In the Minister’s contention, the applicant’s assertions that he satisfied the various criteria for absorption discussed by French J in Johnson v Minister for Immigration and Multicultural and Indigenous Affairs (supra) at [46] do not alter the fact that he did not cease to be an immigrant either before 2 April 1984 or at all.
(c) Prohibited immigrant.
81 Dr Donaghue submitted that it is not possible for a person to be absorbed into the Australian community if that person possesses, by force of the relevant legislation, the status of a “prohibited immigrant”. A passage from the judgment of Barwick CJ in R v Forbes; Ex parte Kwok Kwan Lee (1971) 124 CLR 168 at 172-173 was cited in support of this contention. There, his Honour (with whom the other members of the Court agreed) said;
‘… immigration as a concept involves two elements (a) entry into the country and (b) absorption into the community of the country. Parliament clearly has authority to legislate with respect to both elements and laws which control those elements can be made under s 51(xxvii). It can say who may enter and it can say on what terms if at all a person so entering may become a member of the Australian community … It scarce needs saying that a prohibited immigrant may not by any means become a member of the Australian community whilst he is a prohibited immigrant. By the very description he is not a person having any title to remain in the country.’ (emphasis added)
82 After noting that the emphasised part of the passage just cited had been quoted with approval by Gummow J in Al-Kateb v Godwin (2004) 208 ALR 124; 78 ALJR 1099, at [91], Counsel for the Minister submitted, that, at the time of the applicant’s entry into Australia in 1972, he was a person to whom s 16(1)(c)(ii) applied because he had been convicted and sentenced to four years imprisonment on 12 May 1964.
83 In 1972 (when the applicant entered Australia for the first time) s 16(1) of the Act provided that:
‘Where, after the commencement of this Part or before the commencement of this Part but after the commencement of the Immigration Restriction Act 1901, a person who enters or entered Australia as an immigrant:
… … …
(c) at the time of entry is or was a person of any of the following descriptions, namely … …
(ii) a person who had been convicted of a crime and sentenced to imprisonment for one year or more; or …
that person shall, notwithstanding section 10 of this Act, be deemed to be a prohibited immigrant unless he is the holder of an entry permit endorsed with a statement that the officer granting that permit recognises him to be a person referred to in this sub-section.’
84 The Minister submitted that, as there is no evidence that he ever held an entry permit endorsed in the manner required by s 16, the applicant was, on his arrival in Australia, a “prohibited immigrant”. He was therefore incapable of “ceasing to be an immigrant” within the meaning of s 34(2)(b) because a prohibited immigrant cannot be absorbed into the Australian community. In addition to the observations of Barwick CJ in R v Forbes (supra), Counsel for the Minister also relied in support of this submission on Koon Wing Lau v Calwell (1949) 80 CLR 533, per Latham CJ at 561, R v MacKellar; Ex parte Ratu (1997) 137 CLR 461 per Mason J at 478, Tjandra v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 577 and Yong v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 566 at 571.
(d) The applicant fell within s 20 of the Act
85 A further reason advanced on behalf of the Minister why the applicant could not have been granted an absorbed person visa was that s 34(2)(d) provides that a non-citizen is taken to have been granted an absorbed person visa only if, immediately before 1 September 1994, the non-citizen was not a person to whom s 20 of the Act as then in force applied.
86 Section 20(1)(d)(ii), as then in force, provided, amongst other things, that a person might become an illegal citizen where he or she had been convicted and sentenced to a term of imprisonment of least one year. On the Minister’s argument, the applicant was a person to whom s 20(1)(d)(ii) applied as he had been convicted in 1964 of stealing from a person and sentenced to a term of imprisonment of four years. Section 20(1)(d)(ii) applied whether the person’s entry into Australia occurred before or after its commencement and if “on any occasion” when the person had entered Australia the condition was satisfied. That occurred in the present case when the applicant entered Australia on 24 May 1972. He was therefore not a person who could have been taken to have been granted an absorbed person visa, irrespective of whether he otherwise satisfied the criteria in s 34(2).
87 Four reasons were advanced on behalf of the Minister for rejecting the applicant’s contention that s 20 did not apply to New Zealand citizens. In the first place, it requires s 20 to be read contrary to its express terms. Sub-section 20(1) expressly identified the persons to whom it applied (see above at [31]) and did so in a way that was plainly capable of embracing New Zealand citizens because it created no distinction based on nationality.
88 Second, it was submitted, there was no policy reason why s 20 should not have applied to New Zealand citizens. In particular, the Minister contended, there is no basis for excluding the application of s 20 merely because most New Zealand citizens in Australia did not hold entry permits. The Minister disputed the existence of any necessary nexus between the operation of s 20 and the holding of an entry permit. Rather, it was argued, in order to understand the effect of falling within s 20 it is necessary to have regard to s 14(2) in the form in which it was before the amendments that commenced on 1 September 1994; see [32] above.
89 The effect of s 14(2), it was submitted, is that whether or not a person held an entry permit at the time when he or she fell within the operation of ss 14(2) and 20, that entry permit was cancelled by operation of s 35 of the Act. Consequently, Counsel for the Minister submitted, despite the fact that at various times in the past New Zealand citizens have been allowed to enter Australia without entry permits, it does not follow that s 20 did not apply in relation to citizens of New Zealand. The existence of an entry permit was not a necessary condition for the operation of s 14(2) or s 20. On the contrary, the statutory regime created by ss 14 and 20 was concerned with the exclusion of undesirable persons from Australia whatever their nationality.
90 The Minister’s third contention was that the applicant’s submission that s 20 does not apply to New Zealand citizens is contrary to authority. In this context, reference was made to Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364 which concerned a New Zealand citizen who, in the circumstances, did not require an entry permit.
91 The Minister’s fourth submission under this head was that the applicant’s contention that s 20 could not apply to New Zealand citizens was contrary the terms of regs 16 and 17 of the Transitional Regulations both of which were predicated upon the possibility that there were New Zealand citizens to whom s 20 applied.
92 In relation to the applicant’s submission that s 20(1) ought not to have retrospective effect in the applicant’s case as it produces absurd results, Counsel for the Minister submitted that the language of the section is clear. It expressly applies to a non-citizen whether that non-citizen entered Australia “before or after” the commencement of the provision. In the Minister’s submission, Parliament plainly intended the section to apply to non-citizens who were already in Australia when s 20 commenced (and who, therefore, had entered under a different legislative regime); see Sciascia per Sheppard J (dissenting) at 368. Also in Sciascia the majority, Burchett and Lee JJ, gave s 20 a restricted interpretation on the basis that its retrospective effect may deprive of his or her right to community a person who had lived in Australia for 20 years as a lawful entrant. For the Minister, it was submitted, however, that the paragraph of s 20 to which their Honours referred in that case is not presently relevant as the applicant has never become an Australian citizen and so s 20(1) continues to apply to him.
93 Dr Donaghue, on behalf of the Minister, submitted that the possibility that s 20 may operate to deny an absorbed person visa to a person who would otherwise have obtained such a visa because that person had “ceased to be an immigrant” was expressly recognised in s 34(2)(d).
94 In summary, the Minister contended that, as a person who has been sentenced to a term of imprisonment of four years, the applicant fell within the terms of s 20(1)(d)(ii). He, therefore, did not satisfy the requirements of s 34(2)(d) of the Act on 1 September 1994. Consequently, it was submitted, he had not been granted an absorbed person visa by operation of that section.
(e) The applicant held a special category visa
95 It was next submitted on behalf of the Minister that the applicant falls within the terms of reg 17 of the Transitional Regulations, which is reproduced at [33] above because he “was, immediately before 1 September 1994, an illegal entrant because of s 20 of the old Act” and he was not taken to hold any of the other visas listed in reg 17(1)(c). He was therefore, the Minister contended, taken, by force of reg 17(2), to have been granted a special category visa on 1 September 1994.
96 Accepting that the term “special category visa” is not defined in the Transitional Regulations, Counsel for the Minister pointed to s 46(1)(a) of the Acts Interpretation Act 1901 (Cth) which provides that expressions used in regulations have the same meaning as in the Act that conferred the power to make the regulations. “Special category visa” in reg 17, was, therefore, said to have the same meaning as in s 32(1) of the Act (as in force from 1 September 1994) which makes it clear that a special category visa is a temporary visa.
97 Dr Donaghue further submitted that there is no inconsistency between reg 17 and s 32 of the Act. Mr Hurley for the applicant had contended that the applicant could not have been granted a special category visa pursuant to reg 17 because he fell within the definition of “behavioural concern non-citizen” in s 32(2)(a)(ii). However, on the Minister’s argument, no inconsistency arises because s 32(2)(a) is concerned with the criteria for the special category visa when it is granted as a result of an application for the visa. Regulation 17, so the argument proceeded, deemed a class of persons to hold such a visa. Parliament had not prescribed the criteria that must be satisfied by every member of a class of holders of a particular type of visa and, moreover, the terms of s 32(2)(b) and (c) support the granting of special category visas by reference to criteria other than those in s 32(2)(a).
98 In the same context, it was submitted on behalf of the Minister that reg 17 of the Transitional Regulations was a valid regulation made pursuant to s 40(6) of the Migration Reform Act 1992 which authorised a regulation stipulating that persons who fell within its scope were taken to have been granted “special category visas” in a specified “amended Act class” (defined in s 40(1) of the Migration Reform Act 1992 as a class of visas that is provided for by, or by regulations under, the Act.)
99 According to the Minister, the policy underlying reg 17, and specifically reg 17(1)(b)(ii), was that illegal entrants from New Zealand were to be granted special category visas if they had automatically become illegal entrants because of the operation of the old s 20 with the effect that those persons could then be considered for visa cancellation on a case by case basis. Support for this contention was said to be derived from the Explanatory Statement of the Transitional Regulations.
100 Consequently, it was submitted, that, at the time when the Minister came to consider the cancellation of the applicant’s visa on 15 December 2000, the only visa then held (and that could have been held) was a special category visa.
Jurisdictional error (Minister’s failure to identify the applicant’s visa)
101 The applicant’s reliance on the observations of the Full Court in Nystrom (supra) was said to be based on a misunderstanding because in Nystrom the Minister was found not to have considered the effect that the cancellation of a different visa held by the applicant would have upon his absorbed person visa as it was conceded that he did in fact hold one.
102 For the Minister it was submitted that the present applicant’s contention that his circumstances are indistinguishable from those of the applicant in Nystrom is plainly incorrect. First, it was not conceded that the applicant held an absorbed person visa. Secondly, he had entered Australia as an adult, having grown up in New Zealand, and had an established criminal record at the time of entry in 1972. On the Minister’s view, he was therefore a prohibited immigrant pursuant to s 16 of the old Act and thus incapable of being absorbed into the community. Further, on his own evidence, he had evaded immigration officials to enter Australia during March or April 1984 (the uncertainty as to the date making it possible that he was not even present in Australia on 2 April 1984 as required in order to satisfy s 34(2)(a) of the Act). The applicant, it was said, did not satisfy any of the criteria for the grant of an absorbed person visa.
103 By contrast, according to the Minister, the applicant in Nystrom, had entered Australia as a four week old baby in the company of his mother, who had migrated to Australia some eight years earlier. He had grown up in Australia and did not commence offending until after 2 April 1984 (the relevant date for absorption purposes under s 34 of the Act). Moreover, the applicant in Nystrom had never evaded immigration officials or committed an offence that might have brought him within the terms of s 20 of the old Act and there was no doubt that he was actually in Australia on 2 April 1984. Consequently, the Minister had conceded in Nystrom that the applicant held an absorbed person visa. There, the Minister further contended, the applicant had also held a Transitional (Permanent) visa which was the visa which the Minister had purported to cancel. The Full Court held that the cancellation had miscarried because the Minister had not considered the effect that the cancellation would have upon the applicant’s absorbed person visa by operation of s 501F(3) of the Act (which provides for the cancellation of all visas held by an applicant upon the cancellation of a particular visa).
104 It followed, according to the Minister, that the issue that had been determinative in Nystrom does not arise in the present case because the applicant does not hold an absorbed person visa; he only held one visa – a special category visa granted by force of s 17 of the Transitional Regulations, so that the effect on a different visa of the cancellation of one visa does not arise.
105 The Minister accepted the applicant’s submission that he did not “hold” a Transitional (Permanent) visa, but contended that Nystrom is irrelevant to that proposition because the reason why the applicant held no such visa is that he had been refused entry to Australia in 1984 and had thereafter entered illegally. It was submitted that he obviously did not hold an entry permit irrespective of the complications discussed in Nystrom about when a person in the “holder” of an entry permit.
106 In the present case, Dr Donaghue submitted, the Minister should be taken to have cancelled the applicant’s special category visa which was the only visa that he was capable of holding. It was accepted that the authorities establish that it is a jurisdictional error to cancel the wrong visa, but the applicant had not made those authorities applicable to himself by showing that the Minister had cancelled the wrong visa and had therefore not discharged the burden of establishing the ground of review upon which he relies.
The Minister was not required to consider the “consequences” for the applicant of the Minister’s deciding personally to cancel the visa
109 Counsel for the Minister also submitted that the applicant’s contention is inconsistent with the generality of authority in this Court in relation to the operation of s 501 including Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 where Kiefel and Bennett JJ, at [72], approved an earlier reference to the discretion to cancel a visa under s 501 as unfettered. It was further held by their Honours that there is no implied obligation on the Minister to consider specific factors personal to the visa-holder when making a cancellation decision. This entails, Dr Donaghue submitted, that the Minister cannot be required to consider the consequences of a particular cancellation.
110 Whilst acknowledging that the majority in Nystrom had suggested, at [26] that “it is timely for there to be a review by the Minister of the proper approach to matters such as” occurred in that case, Counsel for the Minister pointed out that the majority in Nystrom indicated that actual ministerial consideration is only required for cases of particular political sensitivity which does not include instances of ordinary criminal conduct like that which had occurred in Nystrom.
111 According to the Minister, the decision of French J in Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757referred to at [108] above should be followed unless the Court were satisfied that it was plainly wrong which, in the Minister’s submission, the Court could not be. Accordingly, leave to raise the new ground should be refused, or the ground should be rejected.
Section 501 should not be read down by reference to ss 200 and 201 of the Act
112 Counsel for the Minister acknowledged that the applicant’s second proposed additional ground of appeal derives support from the reasoning of the majority in Nystrom which held that s 501 should not be used to circumvent the limitations in s 201 and that to do so would disadvantage retrospectively permanent visa holders who happen to be non-citizens. Nevertheless, it was submitted on behalf of the Minister that no argument had been directed in Nystrom to the relationship between ss 200, 201 and 501 of the Act as the applicant had not contended that s 501 was incapable of supporting the decision to cancel his visa. In consequence, the majority appears to have overlooked a considerable body of authority which is inconsistent with the suggestion that “it may be that the specific power conferred by s 201 to deport non-citizens who have committed crimes is the only source of power to deport”; (see Nystrom at [27]).
113 In Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400, an appeal against a judgment of Sackville J who had held that the Minister could not exercise powers under ss 501 and 502 to cancel a visa in circumstances in which the Administrative Appeals Tribunal had previously set aside a decision to deport a person pursuant to s 200, the Full Court held, at 408-409, that the Minister had been entitled to rely upon s 501. It was further held that in doing so “he exercised a separate power (from that conferred by ss 200 and 201) which was available to him and the exercise of which was directed towards the purpose for which the power was conferred, namely, the removal from Australia of non-citizens who have committed serious crimes or are otherwise not of good character”. The Minister further submitted that the reasoning of the Full Court in Gunner had been specifically approved by the High Court in Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507.
114 In Bridges v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 456, another Full Court of this Court rejected the submission that a non-citizen permanently resident in Australia for more than ten years should be assured that no criminal offences can affect his or her status as a member of the Australian community, holding that a decision-maker could, in the exercise of the discretion to deport under s 200, consider offences committed at any time. Dr Donaghue also referred to Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 959 in support of his submission that the use of a specific power given to the Minister under the Act is unfettered and also relied, in support of that submission, on the observations of Kiefel J (speaking for the Full Court) in Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 176 ALR 79, at [5].
115 The Minister’s response to the applicant’s submission that s 501 is a “general provision” which yields to the “specific provisions” in s 200 was that it is directly inconsistent with the judgments of the Full Courts of this Court noted in the two preceding paragraphs which make it plain that ss 200 and 201 can operate in parallel with s 501; the existence of one power does not exclude or limit the others.
116 Moreover, in the Minister’s submission, s 501(2) is not properly to be characterised as a “general power” but is, rather, a specific power to cancel the visas of persons who, the Minister reasonably suspects, do not pass the character test. The fact that circumstances giving rise to a reasonable suspicion that a person does not pass the character test might also expose that person to deportation does not mean that s 501(2) is being used to “circumvent” s 201. The two provisions are different and different legal consequences follow the exercise of each power even though the practical effect for a visa hold may be substantially the same; see per Kiefel J in Lu v Minister for Immigration and Multicultural and Indigenous Affairs (supra) at [15]. Accordingly, Counsel for the Minister contended that, although Nystrom afforded some support for the applicant’s argument, ss 200 and 201 do not limit the power conferred by s501(2) of the Act which is a “distinct source of Ministerial power”, the proper construction of which is not affected by s 201.
117 Alternatively, it was submitted that, for the applicant to succeed on this ground, he had to show that he would not have been susceptible to deportation under s 200 of the Act. In the Minister’s submission, the applicant had failed to satisfy that requirement because he had concentrated on his “most recent criminal record”, and the fact that the issues paper given to the Minister in relation to s 501 had focused on the 1999 drug offences. That reliance on the contents of the issues paper was said to be misconceived because the Minister had not been purporting to exercise any power under s 200; whether the applicant was susceptible to deportation depended upon all of the relevant facts not just those highlighted in the issues paper. One such relevant fact was said to be the conviction recorded against the applicant in Australia in May 1964 for stealing from a person for which he was sentenced to a term of imprisonment of four years. As a consequence, he attracted the application of s 201(b)(ii) because s 201(a) makes it clear that the section applies to convictions whether “before or after the commencement of this section”. Consequently, at the time of his conviction, the applicant was a New Zealand exempt non-citizen who had been in Australia for less than ten years.
118 Counsel for the Minister defended this point as neither academic nor unfair. It was the applicant’s conviction in 1964 which had resulted in his being refused permission to enter Australia in 1984. That conviction brought him within s 16 of the Act as it then stood and took him outside the scope of the exemption that ordinarily permitted New Zealand citizens to enter this country. Accordingly, the applicant, having been present in Australia for the last 20 years by reason of his circumvention of immigration controls in 1984, could not reasonably deny that it was open to the Minister to base his deportation on the 1964 conviction. It was said to follow that, even without the assistance of the Full Court authorities, the Minister had shown that s 200 had not been circumvented because the restrictions erected by that section would not have prevented the applicant from being deported.
Extension of time
119 Further or alternatively, Counsel for the Minister submitted that, even if the Court were to conclude that the Minister may have erred in making the decision, the relief should be refused for discretionary reasons; (see R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 407 for a discussion of factors relevant to the discretion to decline relief).
120 Although the Rules of this Court do not specify a time limit for the bringing of applications under s 39B of the Judiciary Act, the factors relevant to the discretionary refusal of prohibition in this Court were said to be those relevant to the determination of whether extensions of time should be granted under the High Court Rules; (see S58 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 451 per Madgwick J, at [21]).
121 The four year delay in instituting proceedings for judicial review was said to be extremely lengthy and there was no suggestion that the Minister had contributed to it; see Re Commonwealth; Ex parte Marks (2000) 177 ALR 491, at 495 where an application for an extension of time under the High Court rules was refused because of a 17 month delay). Such a delay may lead to the refusal of relief even where the decision challenged has involved jurisdictional error; Re Refugee Tribunal; Ex parte Aala (2001) 204 CLR 82, 106-107 [53], 108 [56]-[57]; NAUV v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 124; (2004) 82 ALD 784, at [38] and [44]. In this case the delay had been caused by the applicant’s decision to circumvent the decision by unlawful means (the applicant accepted removal from Australia and then immediately returned to resume his former life instead of challenging the validity of the decision within a reasonable period of the decision having been made). In the Minister’s submission, the applicant has only mounted a curial challenge to the decision because his unlawful attempts to circumvent it have failed and the Court should not lend its aid to those who invoke the law only after resorting to unlawful means in an attempt to achieve their objectives.
122 A related consideration was said to be that, because of the applicant’s failure to challenge the decision in a timely fashion, the Minister was unaware of any issue of invalidity of the decision until four years after it had been made. That delay has been prejudicial because it is now too late for the relevant Minister to prepare a meaningful or admissible statement of reasons.
123 Counsel for the Minister also submitted that the applicant’s further involvement in unlawful activities relating to drugs and the fact that the Minister’s decision had been founded in part on the applicant’s unlawful re-entry into Australia and his resumption of criminal activities cast doubt upon the genuineness of the applicant’s opposition to the decision to cancel his visa on character grounds including his claims that his involvement in drugs had been attributable to naiveté and that he would not engage in future criminal activity in Australia.
124 Finally, Dr Donaghue submitted that the Court should refuse relief because it would be futile in any event. It was submitted that, even if the applicant had, in fact, held a visa before 15 December 2000 and the Minister’s decision was for some reason invalid and liable to be set aside, any visa that the applicant had held would have lapsed when he left Australia in February 2001. That would have occurred as a result of s 82(8) of the Act or, if the applicant had held an absorbed person visa, by force of s 34(1). Consequently, even if the decision be set aside, it would follow that the applicant does not presently hold a visa and therefore would remain an unlawful non-citizen; (see Hicks v Nixon (2004) 138 FCR 32 at [44] and [49]).
Resolution of Issues
Minister’s failure to comply with s 501G - The application for mandamus
125 The relevant subsections of s 501G are set out above at [25] of these reasons. It was conceded on behalf of the Minister that his reasons do not conform with s 501G(1)(e). However, it is clear that when the Minister signed the issues paper he thought that, in doing so, he was complying with his statutory obligations under s 501G and that the issues paper, as signed, disclosed his reasons as required by s 501G(1)(e). This was the conclusion reached in similar circumstances by a Full Court of this Court in Howells v Minister for Immigration and Multicultural and Indigenous Affairs (supra) following a body of authority comprised by judgments of single Judges of this Court to that effect: Diep v Minister for Immigration and Multicultural Affairs [2001] FCA 1130; Javillonar v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 311; Adams v Minister for Immigration and Multicultural Affairs [2001] FCA 552 and Ruhl v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 401 at [29].
126 It was also concluded in Howells that it was not until a decision of a Full Court of this Court in Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433 in September 2002 that the Minister could have known that the procedure which he had adopted did not comply with his statutory obligations under s 501G(1)(e). In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (supra), at [40] and [54], the High Court of Australia held that the signing of an issues paper of the kind used in the present case did not comply with s 501G(1)(e).
127 Howells is also authority for the proposition that the Minister’s state of mind does not excuse the failure to give reasons but only explains that failure and that it remains that the Minister has not given the applicant written notice that sets out the reasons for the decision; see [24]-[25]. Counsel for the Minister in the present case opposed any order requiring reasons to be given. There are sound arguments for and against the making of such an order. On the one hand, to require the Minister to give reasons is in the public interest in ensuring that Ministers of the Crown perform their statutory duties. However, the applicant’s delay in seeking reasons for the Minister’s decision and his failure to seek, before the hearing of his substantive application, mandamus compelling the provision of reasons weigh against an exercise of discretion by making such an order now.
128 The applicant sought to explain his delay by asserting that he had never received a copy of the issues paper. Whether or not he ever received the issues paper, the circumstance that the applicant has resided in Australia since his deportation on 17 February 2001 suggests to me that his delay has been in consequence of a deliberate decision to circumvent Australian law and re-enter the country surreptitiously immediately after his removal rather than challenge the cancellation decision. A further consequence of the delay is that the Minister who made the decision, on 15 December 2000, the Honourable Philip Ruddock, is no longer the Minister and has not been the Minister since October 2003. Any order requiring the Minister to give reasons for the decision would be directed to the present Minister, Senator Vanstone, who was not the Minister who made the decision. I do not consider that it would be of any assistance in this matter to require, in these circumstances, the current Minister to provide the reasons of the former Minister. The application for an order in the nature of mandamus should be refused.
The applicant’s visa status
129 The constitutional foundation of the Act changed from the “immigration” power to the “aliens” power on 2 April 1984. Before that date it was possible to cease to be an immigrant for constitutional purposes by absorption into the Australian community pursuant to s 34(2) of the Act; Re Minister for Immigration and Multicultural Affairs; ex parte Te and Dang (2002) 212 CLR 162.
130 Following the amendments which came into operation on 2 April 1984, the Act applied to any non-citizen, whether or not the non-citizen was an “immigrant” or had ceased to be an immigrant by being “absorbed into the community”. (In Nolan v Minister for Immigration and Ethnic Affairs (supra)it was held that any immigrant who has not taken out Australian citizenship is an alien for the purpose of s 51(xix) of the Constitution; (Nolan was overruled in Re Patterson; Ex parte Taylor (supra) but then subsequently affirmed in Shaw v Minister for Immigration and Multicultural and Indigenous Affairs (supra). In respect of the latter judgement, Spender J in Shaw v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 402 observed, at [16];
‘This Court, and the Judges of it, are of course bound by the judgment of the High Court on the stated case in Shaw, which answers in the affirmative the question “Was s 501(2) of the Migration Act 1958 (Cth) within the legislative powers of the Commonwealth to the extent that it authorised the respondent to cancel the applicant’s visa on 17 July 2001?”’
The majority of the High Court concluded that Mr Shaw was an alien, notwithstanding that he was born to British parents on 27 December 1972 in the United Kingdom and he arrived in Australia on 17 July 1974 and had not left Australia since that date.”
131 Merely ceasing to be an immigrant does not automatically amount to absorption into the Australian community. The rest of s 34 must also be satisfied. The present applicant must, therefore, show, first, that he had satisfied the criteria for an absorbed person visa (including that he had ceased to be an immigrant) pursuant to s 34. The fact that the Act continued to apply to persons who had ceased to be immigrants but had not been absorbed in accordance with the 2 April 1984 amendments is evident from s 8(2) of the Amending Act which expressly contemplated that some persons who had ceased to be subject to regulation under the old Act, having ceased to be immigrants, would, from 2 April 1984, be regarded as “prohibited non-citizens”.
Did the applicant hold an absorbed person visa?
132 Counsel for the applicant made extensive submissions in support of his claim that he held an absorbed person visa pursuant to s 34(2) of the Act introduced on 1 September 1994 and by reference to the criteria set out by French J in Johnson v Minister for Immigration and Multicultural and Indigenous Affairs (supra), outlined all the factors which, in his submission, supported the proposition that he had ceased to be an immigrant pursuant to s 34(2)(b).
133 The main obstacle in the way of the applicant’s establishing that he was deemed to have been granted an absorbed person visa on 2 April 1984 is s 34(2)(d) which provides that a person to whom s 20 of the Act, as in force immediately before 1 September 1994, applied is precluded from obtaining an absorbed person visa. In my view, the applicant was a person to whom s 20(1)(d)(ii) applied as he had been convicted of stealing from a person in 1964 and sentenced to a term of imprisonment of four years. That section was expressed to have effect whether a person’s entry into Australia occurred before or after its commencement and whether “on any occasion” when the person entered Australia the condition was satisfied. I consider that the condition was satisfied when the applicant entered Australia on 24 May 1972.
134 I am not persuaded by the applicant’s submissions that s 20(1)(d)(ii) was not intended to apply to New Zealand citizens. In the first place, as Counsel for the Minister pointed out, s 20(1) expressly identified the persons to whom it applied, (see above at [31]) without excluding New Zealand citizens.
135 There is no apparent reason why, as a matter of policy, the legislature would have excluded New Zealand citizens from the application of s 20. I do not regard s 20 as having been inapplicable to them because they did not hold entry permits. It is true that s 14(2), as in force from 1 September 1994, which is reproduced at [32] above, made an illegal entrant any person to whom s 20(1) applied and who answered other descriptions including that he or she “does not hold a properly endorsed valid entry permit or a properly endorsed valid entry visa.” However, s 14(2) did not purport to be an exhaustive statement of how an entrant to Australia might become an illegal entrant. Moreover, Burchett and Lee JJ referred to s 14(2) in Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364 but went on to observe, at 373;
‘… Although, as a New Zealander, the appellant was under no requirement to obtain an entry permit when he arrived in Australia, there is authority, the correctness of which was not debated before us, to support the retroactive application of the 1979 amendment to a person who had come lawfully to Australia without an entry permit: see Samuels v Hurford, Minister of State for Immigration and Ethnic Affairs(unreported, Woodward J, 1 August 1985).’
136 I also regard as misconceived the applicant’s contention that the retrospective operation of s 20(1) worked an “injustice” to him. It may be true that the applicant could not have known, when he left Australian in 1965 under the statutory regime then in force, what would be the effect on him of an enactment which did not come into operation until June 1989. However, the critical reason why the applicant did not attain absorbed person status was his criminal conviction, not the effect of his having left the country. Section 20 expressly applied to a non-citizen whether that non-citizen entered Australia “before or after” the commencement of the section. Parliament plainly intended it to apply to non-citizens who were already in Australia when the section commenced (and who had, therefore, entered under a different statutory regime); see Sciascia per Sheppard J at 368.
137 The applicant consequently did not satisfy the requirements of s 34(2)(d) of the Act on 1 September 1994. He was, therefore, not a person who could have been granted an absorbed person visa, irrespective of whether or not he otherwise satisfied the criteria in s 34(2).
138 It follows from the conclusion just reached that the applicant was not the holder of an absorbed person visa when he was deported from this country on 17 February 2001. It is therefore unnecessary to consider what effect that “involuntary” departure had on the presumptive absorbed person visa on which the applicant’s case was erected. It also follows that the assumption, imputed to the Minister when he decided to deport the applicant, that the applicant was not the holder of an absorbed person visa was not erroneous. It could not, therefore, have constituted jurisdictional error.
139 Nor am I persuaded that the Minister was required, on pain of falling into jurisdictional error, to take into consideration, as a relevant matter, the different consequences of deportation under ss 200 and 201 on the one hand and of cancellation of a visa under s 501 on the other. Those different consequences were in respect of a procedural or adjectival matter, namely whether the decision would be amenable to review on the merits. The discretion reposed in the Minister was, in the relevant respects, unconfined and I am unable to discern in the subject-matter, scope and purpose of the Act an implication that the Minister was bound to take into account that his personal exercise of the discretion conferred by s 501 would preclude the applicant from “merits review” by the Administrative Appeals Tribunal of the decision; see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J at 40.
140 I regard as compelling, with respect, the reasoning of French J in Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 where his Honour observed, at [52];
‘The question whether AAT review is available in respect of the exercise of the cancellation power under s 501 is anterior to the exercise of that power as it is resolved by the decision of the Minister to exercise the power personally. That, as a matter of logic, is an answer to the submission that the availability of AAT review, in the case of cancellation decisions by delegates, is relevant to the actual exercise of the power by the Minister. The section confers upon the Minister power to cancel a visa on character grounds. That may be exercised by a delegate under the general provisions of s 496. But there is no constraint, expressed or implied, requiring the Minister in exercising the power or anterior to its exercise to have regard to the consequence that if he exercises the power personally AAT review will not be available. It may be that the availability of merits review by the AAT, in the case of a cancellation decision, made by a delegate, is intended to provide a degree of protection where a decision is taken at a level lower than that of the Minister personally. Whatever the policy underlying the provision of merits review in relation to a delegate’s decision, no basis was disclosed in argument for the proposition that its availability is a relevant consideration which the Minister is required to take into account in the exercise of his power to cancel a visa – Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24.’
Should s 501 be read down by reference to ss 200 and 201?
141 I have been unable to accept the first premise of the applicant’s argument under this head. That is, that ss 200 and 201 are directed to the same subject-matter, or confer essentially the same power, as s 501. Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 was a stronger case than the present because, there, the Minister, acting personally, had decided to cancel a visa in the teeth of a decision by the Administrative Appeals Tribunal to overturn a deportation order in respect of the same visa-holder. In that case, the Full Court (Heerey, Lindgren and Emmett JJ) said, at 407;
‘There can be no doubt that Parliament recognised the importance of merits review by the AAT and the particular seriousness of deportation orders (as witnessed by the requirement of s 500(5) that the Tribunal be constituted by a Presidential member alone). Nevertheless, the whole point of s 502 is to provide that merits review is not to be available in certain circumstances. Moreover, as his Honour accepted, Parliament has provided specific protections against abuse of this power in the requirements that it must be exercised personally by the Minister and that notice of the making of a decision under s 502(1) be laid before each House of Parliament. Further, it is not accurate in our respectful submission to speak of setting at nought the AAT’s determination. This is not a case where a Minister attempted to act in defiance of a binding ruling by the AAT. Sections 501 and 502 are quite separate sources of power. The criteria for the exercise of those respective powers are by no means co-extensive, although there is an overlap. The fortuitous circumstance that two separately-sourced powers might be exercised in respect of the same collocation of facts cannot affect the construction of the relevant statutory provisions, which must be given a meaning as at the time of their enactment.
In any event, it is not entirely correct to say that the Minister’s decision was “based on” the same facts and circumstances as had been considered by the AAT. The Minister did not have before him any material which was not before the AAT. But because of the different provisions of ss 201 and 501 the test is not the same and the criteria are different. The Minister, in exercising the discretion conferred by s 501, was entitled to take into account matters which were not relevant to a decision under s 200 based on the criteria specified in s 201.’
‘In our view, s 501 of the Migration Act (and other provisions relating to cancellation of visas on character grounds) do not justify limiting the power in s 200 so as to prevent the Minister taking into account non-deportable offences in considering whether or not to make a deportation order. The Full Court has held, in relation to an earlier version of s 501, that the criteria to be taken into account in exercising the power to cancel a visa on character grounds are different from those to be considered in relation to the power of deportation conferred by s 200: Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400, at 408. (The reasoning of the Full Court in Gunner was said by the High Court in Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421, at 441, per Gleeson CJ and Gummow J (with whom Hayne J agreed); at 451, per Kirby J, to be correct.) There is no reason to suppose that the reasoning in Gunner does not apply to s 501 in its present form. It is true that s 501 provides a source of power to deport a non-citizen by reason of, amongst other things, his or her criminal history. But it is a distinct power, with its own legislative history, which requires, or at least permits, criteria to be taken into account different to those applicable to s 200 of the Migration Act. In our view, the power to cancel a visa on character grounds does not provide a basis for reading down the discretion conferred by s 200. It is to be remembered that the power of deportation is exercised not for the purpose of punishing an offender, but to protect the Australian community: Ex Parte Walsh; Re Yates (1925) 37 CLR 36, at 61, per Knox CJ, at 96, per Isaacs J; O’Keefe v Calwell (1940) 77 CLR 261, at 278, per Latham CJ. There is no reason to think that the distinct sources of Ministerial power were intended to be anything other than cumulative.’
See also Wong v Minister for Immigration and Multicultural and Indigenous Affairs (supra)per Tamberlin J at [19].
143 These analyses of the two statutory sources of power preclude the characterisation of s 501 as a “general power” which must yield to the specific provisions of ss 200 and 201. That characterisation receives some support from dicta of Moore and Gyles JJ who constituted the majority of the Full Court in Nystrom (supra) where their Honours said, at [27];
‘The first issue requiring reconsideration is the use of s 501 in circumstances where the directly relevant substantive section (s 201) is not applicable. Section 501 should not be used to circumvent the limitations in s 201. Apart from anything else, to do so is to retrospectively disadvantage permanent visa holders who happen to be non-citizens. While it was not argued in these proceedings, it may be that the specific power conferred by s 201 to deport non-citizens who have committed crimes is the only source of power to deport (in a case such as the present) and not indirectly, the power conferred by s 501 to cancel a visa enlivening the power to remove under s 198: see Anthony Hordern and Sons v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; Hoffman v Chief of Army (2004) 137 FCR 520 at [12]–[27].’
144 However, their Honours did not refer to Gunner (supra) or the extensive line of subsequent authority, some of which I have noted at[142] above and which, I consider, binds me to hold that s 501 is an independent parallel source of power to cancel a visa which is not impliedly cut down by the presence in the Act of ss 200 and 201.
145 For these reasons, I have concluded that the second argument raised by the applicant’s supplementary submissions cannot succeed.
Conclusion
146 For the reasons which I have endeavoured to express, each of the applicant’s attacks on the Minister’s decision to cancel his visa has failed. That conclusion makes it unnecessary to evaluate the other contentions advanced on behalf of the applicant as to whether any visa held by him on 17 February 2001 ceased to have effect, whether there should be an extension of time to challenge the Minister’s decision and whether the Court’s discretion should be exercised in favour of the applicant. The application must therefore be dismissed with costs.
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I certify that the preceding one-hundred and forty-six (146) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. |
Associate:
Dated: 17th March 2006
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Counsel for the Applicant: |
Mr T Hurley |
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Solicitor for the Applicant: |
Erskine Rodan & Associates |
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Counsel for the Respondent: |
Dr S Donaghue |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Dates of Hearing: |
31 May and 29 July 2005 |
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Date of Judgment: |
17 March 2006 |
