FEDERAL COURT OF AUSTRALIA
Toia v Minister for Immigration and Citizenship [2009] FCA 166
CONSTITUTIONAL LAW – s 39B and s 78B of the Judiciary Act 1903 (Cth)
MIGRATION – visas – process by which child is absorbed – purported cancellation of absorbed person visa on character grounds – whether child absorbed
Administrative Appeals Tribunal Act 1975 (Cth), ss 43, 44, 68AA
Migration Act 1958 (Cth), ss 5, 5E, 34, 474, 476A, 477A, 483, 499, 500, 501
Judiciary Act 1903 (Cth), s 39B, s 78B
The Constitution, ss 51(xix), 51(xxvii), 75(v)
Migration Reform (Transitional Provisions) Regulations 1994, reg 17
Federal Court Rules, O 54A r 2, O 54B r 1 and r 2
Australian Iron & Steel Limited v Hoogland (1962) 108 CLR 471 followed and applied
Charlie v Minister for Immigration and Citizenship (2008) 171 FCR 44 followed and applied
Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334 followed and applied
Johnson v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 494 followed and applied
Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186; (1981) 54 FLR 334 cited
Lesuma v Minister for Immigration and Citizenship (No 2) (2007) 99 ALD 514; [2007] FCA 2106 followed and applied
Minister for Immigration and Citizenship v SZKKC (2007) 159 FCR 565 followed and applied
Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236 followed and applied
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 cited
Rudolphy v Lightfoot (1999) 197 CLR 500followed and applied
Shuster v Minister for Immigration and Citizenship (2008) 167 FCR 186 followed and applied
WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 190; (2004) 79 ALJR 9 followed and applied
PATRICIA CAROL TOIA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ADMINISTRATIVE APPEALS TRIBUNAL
NSD 91 of 2008
FOSTER J
27 FEBRUARY 2009
SYDNEY
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| NEW SOUTH WALES DISTRICT REGISTRY | NSD 91 of 2008 |
| PATRICIA CAROL TOIA Applicant
| |
| AND: | MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent
|
| JUDGE: | |
| DATE OF ORDER: | 27 FEBRUARY 2009 |
| WHERE MADE: | SYDNEY |
THE COURT ORDERS THAT:
1. The applicant have leave to amend her originating process in accordance with the document styled Application for Judicial Review under Section 39B of the Judiciary Act 1903 (Cth) and/or s 476A of the Migration Act 1958 (Cth) dated 11 September 2008 and marked MFI‑1 in the proceedings (the Application).
2. The applicant have leave to file the Application in Court.
3. Service of the Application be dispensed with.
4. The Application be dismissed.
5. The applicant pay the first respondent’s costs of and incidental to the Application, including any reserved costs.
6. At the expiration of twenty-one (21) days after the date hereof the exhibits be returned.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| NEW SOUTH WALES DISTRICT REGISTRY | NSD 91 of 2008 |
| BETWEEN: | PATRICIA CAROL TOIA Applicant
|
| AND: | MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent
|
| JUDGE: | FOSTER J |
| DATE: | 27 FEBRUARY 2009 |
| PLACE: | SYDNEY |
REASONS FOR JUDGMENT
Introduction
1 The applicant was born in New Zealand on 15 July 1978. She is now 30 years of age. She came to Australia on 28 September 1979 at the age of just over 14 months. The applicant was brought to Australia by her mother. Her father entered Australia somewhat earlier (on 1 September 1979).
2 When the applicant and her parents arrived in Australia in September 1979, none of them was required to have any visa or entry permit in order to enter and remain in Australia. This was because they were New Zealand citizens.
3 By reason of several amendments to the Migration Act 1958 (Cth) (the Act) made since 1979, new and significant restrictions have been placed upon the applicant’s entitlement to remain in Australia. This is so even though the applicant has remained in Australia continuously since 1979 and has not travelled outside Australia since that time. She has fairly much spent her whole life here.
4 Since the age of about 15 years, the applicant has persistently engaged in criminal activity. The applicant has been convicted of many offences. Some of those offences involve serious criminal conduct.
6 The applicant sought a review of the delegate’s decision by the Administrative Appeals Tribunal (the Tribunal), as she then believed she was entitled to do. The applicant applied for that review pursuant to s 500 of the Act. Before the Tribunal, the applicant did not contend that she did not hold an absorbed person visa. To the contrary, she accepted that she did hold such a visa. In that forum, the applicant challenged the delegate’s decision on merits grounds.
8 The decisions of the delegate and of the Tribunal, if not overturned, will inevitably lead to the applicant being deported to New Zealand.
9 The applicant seeks to overturn the Tribunal’s decision by applying to this Court for judicial review of that decision.
10 The applicant is presently detained at the Villawood Immigration Detention Centre in Sydney (the Detention Centre). She has been detained there since late 2007.
11 In a previous decision made on 30 July 2004, a delegate of the Minister had purported to cancel a special category visa which, at that time, was thought to have been the type of visa which the applicant held. A special category visa also comes into existence by operation of law. On 2 November 2004, that decision was affirmed by the Tribunal (the first Tribunal decision).
12 In 2005, the Department reconsidered its view as to which type of visa was actually held by the applicant and took the view that she held an absorbed person visa. For this reason, the applicant was released from detention in October 2005.
13 That reconsideration then led to the decisions made in 2007 to which I have referred at [5] to [7] above and which are under challenge in the present proceedings.
14 The proceedings have given rise to many issues and contentions. I propose to address each of those issues in the following order:
1. The Applicant’s Criminal Record;
2. The Minister’s Challenge to this Court’s Jurisdiction and Consideration of the Applicant’s Application for Leave to Amend;
3. The s 78B of the Judiciary Act 1903 (Cth) (the Judiciary Act) Issue;
4. The Decision of the Delegate;
5. The Tribunal’s Decision;
6. The Applicant’s Grounds of Review; and
7. Conclusions and Orders.
1 The Applicant’s Criminal Record
15 The first offence committed by the applicant was committed while she was a minor (she was 15 years of age). Other offences followed in the years between August 1993 and August 1997.
16 In the period from early 1997 to late August 2004, the applicant was convicted of 101 offences. These offences included stealing, larceny, receiving stolen goods, carrying weapons, use of offensive weapons, serious assaults (including assaults of police officers), malicious wounding, serious driving offences, provision of prohibited drugs and trafficking in prohibited drugs.
17 The applicant’s criminal activities took place regularly throughout this period.
18 For 20 of these offences, the applicant was sentenced to various terms of imprisonment ranging from 21 days to 18 months.
19 In the period from 30 March 1998 to 11 October 2003, whilst in prison, the applicant had 42 prison offences recorded against her. Some of these offences involved intimidation, assaults, damage to property and use of prohibited drugs.
20 The applicant was in immigration detention throughout the period from 11 August 2004 to 20 October 2005. Whilst in detention the applicant committed many breaches of the Detention Centre’s rules.
21 In the period from early April 2006 to late April 2007, after being released from immigration detention, the applicant committed a number of further offences. These offences included the provision of a prohibited drug, breaches of bail conditions, shoplifting and driving a motor vehicle whilst disqualified from holding a licence. For some of these offences, the applicant was sentenced to terms of imprisonment, the longest of which was 12 months.
22 Whilst in prison in this period, the applicant committed a further 14 prison offences.
23 The applicant has been disqualified from driving a motor vehicle in Australia until 16 March 2060.
24 Thus, the applicant:
(a) Has been sentenced to a term of imprisonment of 12 months or more; and
(b) Has been sentenced to two or more terms of imprisonment where the total of those terms is two years or more.
2 The Minister’s Challenge to this Court’s Jurisdiction and the Applicant’s Application for Leave to Amend
Introduction (Jurisdiction and Leave to Amend)
25 The Minister submitted that the Court has no jurisdiction to entertain the applicant’s application for final relief. For this reason, he also opposed the applicant’s application for leave to amend her originating process.
27 Although some notice of certain objections to the competency of the applicant’s application was given by the Minister in mid 2008, the full import of the Minister’s argument was not made known to the applicant or to her legal representatives until the day before the hearing before me was due to commence. On 10 September 2008, the Minister’s legal representatives served Written Submissions in which the Minister submitted that the Court had no jurisdiction to hear and determine the applicant’s claims for relief for the reasons noted in [26] above. These submissions were developed further during oral argument which took place the next day.
28 In response to the jurisdiction point taken by the Minister, the applicant sought leave to amend her originating process in accordance with a draft made available to me at the commencement of the hearing. At that time, I marked that draft “MFI‑1”. In MFI‑1, the applicant seeks judicial review of the Tribunal’s decision and claims writs of prohibition, certiorari and mandamus. In that document, she specifically relies upon s 476A of the Act and s 39B of the Judiciary Act.
29 I reserved my decision on the applicant’s application for leave to amend. I will deliver my decision on that application as part of this judgment.
30 I do not mean to criticise the Minister by anything which I have said. He is entitled to put appropriate submissions to the Court in support of his case. He is also bound to draw to the Court’s attention any matters which indicate or tend to indicate that the Court has no jurisdiction in the matter before it.
31 For reasons which will be explained below, I am of the opinion that “notification” within the meaning of s 477A(1) of the Act can only be accomplished by the physical delivery to the applicant personally of a hard copy of the Tribunal’s decision. The Minister tendered no evidence from any witness either by way of affidavit or by oral evidencewhich was directed to proving that the applicant personally had been given by way of physical delivery:
(a) A statement or record in writing of the Tribunal’s decision; or
(b) A statement or record in writing of the reasons for that decision.
32 Nor did the applicant give any evidence which addressed those matters.
33 Neither party put any specific submission directed to either of those matters.
34 The Minister’s case was that the applicant had been notified of the Tribunal’s decision in the manner required by s 477A of the Act on the day when that decision was made, that is to say, on 20 December 2007. No alternative date was suggested by the Minister as the relevant date of notification for the purposes of s 477A of the Act. What particular act or acts constituted such notification was not made clear by the submissions made on behalf of the Minister. It seemed to me that the Minister was contending that I should infer that notification was given on 20 December 2007. Why I should draw that inference was not explained.
35 The focus of the Minister’s submissions was on his contention that the applicant had failed to invoke s 476A of the Act until the first day of the hearing and was thus inevitably out of time.
37 The restriction in s 477A:
… imposes a condition which is of the essence of a new right
(per Windeyer J in Australian Iron & Steel Limited v Hoogland (1962) 108 CLR 471 at 488) and thus:
… stipulates an essential condition or jurisdictional requirement …
(per the High Court in Rudolphy v Lightfoot (1999) 197 CLR 500 at [9] and [10] (p 507)) for the Federal Court in respect of applications brought pursuant to s 476A of the Act.
38 These propositions were expressly taken up and applied by Gleeson CJ and McHugh, Gummow and Heydon JJ in a joint judgment in WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 190 at [32] and [33] (p 198); (2004) 79 ALJR 94 (p 100) where their Honours said:
32 The restriction in s 478 is of a different character to that of typical statutes of limitation which operate to impose a limit of time upon an existing right of action. They operate to bar the prosecution of actions otherwise not subject to such a time limit. In that sense, statutes of limitation are preventative. However, s 478 does not “bar an existing cause of action”; rather, “[i]t imposes a condition which is of the essence of a new right”. [Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471 at 488; Rudolphy v Lightfoot (1999) 197 CLR 500 at 507–8 [10]–[11]; 167 ALR 105 at 107.] Thus, s 478(1)(b) and (2) restrict what otherwise would be the conferral upon the Federal Court of jurisdiction by the parliament under ss 76(ii) and 77(i) of the Constitution. The new jurisdiction so conferred is remedial in nature, although the remedy is confined by the time restriction upon the institution of the proceeding. The provision of information to the unsuccessful visa applicant by the RRT is a necessary step to equip the applicant with the wherewithal to institute such a proceeding in the Federal Court.
33 Paragraph (a) of s 478(1) stipulates that an application to the Federal Court be made in the manner specified by the Rules. At the relevant time, those Rules [O 54B r 2(1)] required that an application be in accordance with form 56. This required the applicant to describe how he or she was aggrieved by the decision, the grounds for the application, and the orders sought. That information may be acquired for use in this way by an examination of the reasons of the RRT indicated in the written statement.
39 The observations of the High Court which I have cited were made in relation to s 478 of the Act (as it stood in 2001). At that time, s 478 was in the following form:
(1) An application under section 476 or 477 must:
(a) be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976; and
(b) be lodged with the Registry of the Federal Court within 28 days of the applicant being notified of the decision.
(2) The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1)(b).
40 At [9] and at [37] in WACB (210 ALR at 193 and 199; 79 ALJR at 96 and 101), the majority emphasised that the Minister bore the burden of establishing lack of competency.
41 In order to make such findings of fact as may be required for the purpose of determining whether the applicant’s application is competent or not, and for determining the applicant’s latest application for leave to amend her originating process, I have found it necessary to read and to consider all of the documents in the Court file (including the transcript of directions hearings and including those documents which evidence communications between Registry staff, on the one hand, and the applicant and persons assisting her, on the other hand). I will make clear in the next section of these Reasons what regard (if any) I have paid to this material.
The Procedural History of the Present Proceedings
43 There are documents in the Court file which provide a basis for drawing certain inferences as to the course of events which have led to the present application before me. However, in my judgment, that material does not provide any reliable foundation for drawing an inference that the applicant was ever handed by anyone by way of physical delivery a copy of the Tribunal’s decision or of its reasons.
44 I will now set out my reasons for this conclusion.
45 As at 16 January 2008, the applicant was detained at the Detention Centre.
46 At about 3.30 pm on 16 January 2008, four folios were transmitted by facsimile transmission on behalf of the applicant from the Detention Centre to the Registry of the Court.
47 The first two folios faxed as part of that communication comprised an affidavit sworn by the applicant on 16 January 2008. That affidavit comprised certain typescript in the form of the standard typescript set out in Form 20 of the Federal Court Forms and certain handwritten materials constituting the evidentiary content of the affidavit. The handwritten portion of the affidavit, with the exception of the signature, appears to have been written by someone other than the applicant but on her behalf. It is reasonable to conclude that an officer employed at the Detention Centre or some other person there completed the affidavit on behalf of the applicant, upon her instructions and with her consent. The applicant signed the affidavit.
48 The third and fourth pages forming part of the facsimile transmission made on 16 January 2008 comprised a document styled Application for Extension of Time to File and Serve Notice of Appeal from Tribunal (the applicant’s Extension of Time Application). That document comprised certain typescript in the form of Form 55B of the Federal Court Forms and certain handwritten portions. The handwritten portions were inserted into the document either by or on behalf of the applicant.
49 It would appear from the Court’s file that blank Forms 20 and 55B Federal Court Forms had been sent by facsimile transmission by staff working in the Registry of the Court to the Detention Centre at about 2.30 pm on 16 January 2008. It is likely that enquiries had been made of Registry staff either by or on behalf of the applicant at some point in time before 2.30 pm on 16 January 2008 as to how the applicant should set about challenging the Tribunal’s decision and that Registry staff had sent blank Forms 20 and 55B Federal Court Forms to the Detention Centre in response to those enquiries.
50 It is clear from the terms of the applicant’s Extension of Time Application that, by 16 January 2008 at the latest, she was aware of the fact that the Tribunal had handed down a decision in her matter and had done so on 20 December 2007.
52 There is, however, no evidence to support a finding that she had personally been given a hard copy of the Tribunal’s decision or a hard copy of the Tribunal’s reasons at any time. There are several ways by which a hard copy of the Tribunal’s decision and reasons could have come into the possession of someone at the Detention Centre. On the material before me, any attempt to make a finding as to how and when that occurred in the present case would be nothing more than impermissible speculation.
53 Staff at the Registry of the Court did not immediately accept for filing the four folios faxed to the Registry at about 3.30 pm on 16 January 2008. Instead, on 17 January 2008, the Court forwarded to the applicant at the Detention Centre by facsimile transmission a blank Form 55A Federal Court Forms. At the same time, the applicant was informed that, provided that a Notice of Appeal in the form of Form 55A Federal Court Forms was completed and returned to the Court by close of business on 17 January 2008, the applicant would be within time to lodge her appeal from the Tribunal’s decision. 17 January 2008 was the 28th day after 20 December 2007. The applicant was also informed that, should she fail to return the completed Notice of Appeal by close of business on 17 January 2008, the Court would then proceed to process her Extension of Time Application.
54 Thus, it was staff in the Registry who suggested to the applicant that the correct form of originating process to be lodged by her if she wished to overturn the Tribunal’s decision was Form 55A Federal Court Forms and that the last day upon which she was permitted to lodge that document (without an extension of time) was 17 January 2008.
55 In doing so, the Registry staff made at least two assumptions which were not correct: First, they assumed that the correct mode of challenge to the Tribunal’s decision was an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act); and, second, they assumed that the time within which that appeal could be lodged had commenced to run on 20 December 2007.
56 An appeal pursuant to s 44 of the AAT Act must be on a question of law and must be instituted within 28 days after the day on which a document setting out the terms of the decision is given to the appellant or within such further time as the Federal Court allows.
57 The applicant was in no position to second-guess the advice which she received from the Registry.
58 It was not until about 3.30 pm on 18 January 2008 that the applicant forwarded to the Registry the completed Notice of Appeal which had been sent to her in blank the day before. When this document was sent by facsimile transmission to the Registry of the Court on that day, it had been completed by hand, signed by the applicant and dated 18 January 2008. It would appear that the Notice of Appeal which was returned to the Court by or on behalf of the applicant on 18 January 2008 was then amended by someone (probably someone in the Registry of the Court) by the addition of the word “DRAFT” in front of the title of the document where that title appears approximately half way down page 1 of the document. The document was then attached to the applicant’s affidavit which had been sworn on 16 January 2008 (two days before). There is no evidence that the applicant authorised these actions in respect of her Notice of Appeal. Her subsequent conduct supports a finding that she did not authorise these actions. She believed then and at all subsequent times that she had lodged this document for filing on 18 January 2008 and that this document constituted the initiating process for the claims which she wished to make. The Minister also appears to have accepted that the Notice of Appeal sent to the Court on 18 January 2008 was intended to be used as initiating process and had been lodged as such with the Court.
59 At the same time and as part of the same facsimile transmission, the applicant forwarded to the Registry of the Court a hard copy of the Tribunal’s decision and the Tribunal’s reasons.
60 It seems that the Registry of the Court then accepted for filing the applicant’s Extension of Time Application supported by the applicant’s affidavit sworn on 16 January 2008 to which had been added the Notice of Appeal faxed from the Detention Centre on 18 January 2008.
61 The Notice of Appeal which the applicant forwarded to the Court by facsimile transmission on 18 January 2008 was, as I have mentioned, in the form of Form 55A Federal Court Forms (Notice of Appeal). This is the form which the Rules of Court prescribe as the appropriate process to be used in the Court where an appeal to the Court from the Tribunal is brought under s 44 of the AAT Act.
62 A different form is required to be used if an application is to be made pursuant to s 476A of the Act for relief in the form of the constitutional writs. The Rules of Court require that Form 56A of the Federal Court Forms be utilised as the initiating process for an application for relief pursuant to s 476A of the Act (see O 54B r 1 and r 2 of the Federal Court Rules) and that Form 5 of the Federal Court Forms be utilised as the initiating process for an application in which the applicant seeks the issue of the writs pursuant to s 39B of the Judiciary Act (see O 54A r 2 of the Federal Court Rules).
63 On 6 February 2008 and again on 6 March 2008, the Court made an order granting leave to the applicant to file and serve by no later than a specified date in each case:
… an Amended Notice of Appeal or an Application for Constitutional Writ Relief.
64 On 23 April 2008, a further order along the same lines was made. The precise order made on this occasion was in the following terms:
THE COURT ORDERS THAT:
1. The Applicant file and serve an amended appeal/application for constitutional writ relief together with any notice pursuant to s 78B of the Judiciary Act 1903 (Cth) on or by 2 May 2008.
65 On 23 April 2008, the Court also ordered that the Tribunal be added as a second respondent to the proceedings.
66 The orders made on 6 March 2008 and on 23 April 2008 were by consent.
67 On 1 May 2008, the applicant filed a document entitled Amended Notice of Appeal. By that document, the applicant joined the Tribunal as second respondent in these proceedings.
68 The document filed on 1 May 2008 identified 10 grounds of appeal. The specific relief sought in this document comprised writs of certiorari, prohibition and mandamus.
The Respondent objects to competency of this application on the grounds that:
1. The Applicant’s application has been brought under s. 44 of the Administrative Appeals Tribunal Act 1975 (Cth) and Order 53, rule 2 of the Federal Court Rules.
2. Section 476A(1)(b) of the Migration Act 1958 (Cth) (“Act”) provides that the Federal Court of Australia has original jurisdiction in relation to a migration decision if, and only if the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500.
3. The decision of the Administrative Appeals Tribunal dated 20 December 2007 (“Tribunal’s decision”) is a privative or purported privative clause decision within the meaning of s. 474(3)(b) of the Act.
4. Section 483 of the Act provides that Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) does not apply to privative clause decisions or purported privative clause decisions.
70 The Minister’s representative who attended the Directions Hearing on 6 February 2008 drew the applicant’s attention to the fact that, in the Minister’s view, the applicant had used the wrong form when she lodged her Notice of Appeal on 18 January 2008. However, on that occasion, the same representative also informed the applicant and the Court that no point would be taken by the Minister in relation to this technicality. Further, on the same occasion, the Minister’s representative submitted to the Court that the Notice of Appeal filed by the applicant on 18 January 2008 had been filed within time. It seems that the stance of the Minister was:
(a) The substantive application (the Notice of Appeal), although in the wrong form, had nonetheless been filed within time;
(b) Even if it had not been filed within time, the Court should grant an extension of time within which to file that application pursuant to s 477A(2) of the Act; and
(c) No point would be taken that the wrong form had been used.
The Minister’s Submissions (Jurisdiction)
72 The Minister submitted that:
(a) The decision of the Tribunal under challenge in the present case is a privative clause decision within the meaning of s 474(2) of the Act;
(b) For this reason, s 44 of the AAT Act does not apply to the Tribunal’s decision in the present case (see s 483 of the Act);
(c) The only way that the applicant can challenge the Tribunal’s decision in this Court is in the original jurisdiction of this Court pursuant to s 476A of the Act;
(d) If the applicant intended to invoke the provisions of s 476A of the Act, she needed to make an appropriate application within 28 days of the actual notification of the decision of the Tribunal (which, in the present case, was 20 December 2007), subject to the power of the Federal Court to extend that period of time by a further 56 days if:
(i) An application for such an order is made within 84 days of the actual notification of the decision; and
(ii) The Federal Court is satisfied that it is in the interests of the administration of justice to do so;
(e) In the present case, the applicant did not make any application for relief pursuant to s 476A of the Act until the first day of the hearing before me but has, at all times, purported to rely only upon s 44 of the AAT Act and is thus outside the time limited by s 477A for an application for s 476A relief; and
(f) Accordingly, because no appropriate initiating process was filed within the time limited by s 477A of the Act, this Court does not have jurisdiction to deal with the claims made by the applicant.
Decision on Jurisdiction and on the Applicant’s Application for Leave to Amend
73 The decision sought to be attacked by the applicant is a decision of the Tribunal. It is a decision of an administrative character. It was made pursuant to the provisions of s 500(1)(b) of the Act and was thus a decision “… made under the Act …”. For the purposes of the Act, the decision of the Tribunal was clearly a privative clause decision (see s 5(1) and s 474(2) of the Act) or a purported privative clause decision. (See s 5(1) and s 5E of the Act. See also Shuster v Minister for Immigration and Citizenship (2008) 167 FCR 186 at [5], [13], [20], [26] and [28].)
74 Section 474(1) of the Act is in the following terms:
474 Decisions under Act are final
(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
75 Notwithstanding the provisions of s 474(1), s 476A of the Act invests this Court with limited original jurisdiction if (inter alia):
the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500
76 As I have said, the Tribunal’s decision in the present case is either a privative clause decision or a purported privative clause decision.
77 Accordingly, s 476A permits a challenge to be made to that decision in this Court. In the event that such a challenge is made within the time limited by s 477A of the Act, the jurisdiction of the Federal Court is the same as the jurisdiction of the High Court under s 75(v) of the Constitution (see 476A(2) of the Act).
78 Section 476A was introduced into the Act by Act No 137 of 2005 and came into force on 1 December 2005. At the same time, s 5E was added. These two sections were intended to address the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. In that case, the High Court held that, for the purposes of the Act, the expression “… decision made under the [Migration] Act …” did not include a decision which was infected by jurisdictional error. In that case, the Court referred to such decisions as “… decisions purportedly made under the Act …”.
79 It may be that the effect of the 2005 amendments to the Act is to deprive s 39B of the Judiciary Act of any role to play in the judicial review by this Court of migration decisions and to confine applicants who seek such relief to the remedies provided by s 476A of the Act.
80 In the present case, for reasons which I will explain below, I do not need to decide this question and expressly refrain from doing so.
81 I will proceed to deal with the jurisdiction question upon the basis that the remedies potentially available to the applicant are confined to those afforded by s 476A of the Act.
82 Section 477A is in the following terms:
477A Time limits on applications to the Federal Court
(1) An application to the Federal Court for a remedy to be granted in exercise of the court’s original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.
(2) The Federal Court may, by order, extend that 28 day period by up to 56 days if:
(a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and
(b) the Federal Court is satisfied that it is in the interests of the administration of justice to do so.
(3) Except as provided by subsection (2), the Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.
(4) The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.
83 Section 483 of the Act provides that s 44 of the AAT Act does not apply to privative clause decisions or purported privative clause decisions.
84 Thus, in my judgment, and reserving for the future the question of the ongoing significance of s 39B of the Judiciary Act in relation to migration decisions, the Minister’s submissions noted in sub-pars (a) to (c) of [72] above are correct.
85 I now turn to the submissions noted in sub-pars (d), (e) and (f) of [72] above.
86 Those submissions raise for my consideration the following additional questions, namely:
(a) In the case of a decision of the AAT made on review under s 500 of the Act, what is the true construction of the phrase:
… within 28 days of the actual (as opposed to deemed) notification of the decision;
and
(b) When was it, if at all, that such notification occurred in the present case?
87 The requirement of actual notification of the decision laid down in s 477A(1) is an important one. The precise content of the requirement will vary depending upon the source of the decision-maker’s powers and obligations and the requirements for notification (if any) set out in the legislation which governs the decision under challenge and the processes leading to the making of that decision.
88 In the present case, I am concerned with a decision of the Tribunal. The relevant decision is the decision made by the Tribunal on 20 December 2007. In a number of provisions, the AAT Act makes a clear distinction between a decision of the Tribunal and reasons for such a decision. The decision of the Tribunal may be announced orally but must be recorded in writing. The reasons for that decision may be given orally or in writing. If given orally, any party to the proceeding before the Tribunal may request the Tribunal to provide a statement of its reasons in writing and the Tribunal is bound to provide such a statement.
89 Accordingly, in the present case, the migration decision which has to be notified for the purposes of s 477A(1) is the following decision of the Tribunal made on 20 December 2007, namely:
The decision under review [referring to the delegate’s decision] is affirmed.
90 Section 43(3) of the AAT Act provides that:
The Tribunal shall cause a copy of its decision to be given to each party to the proceeding.
91 As I have said, the decision of the Tribunal must be in writing (s 43(1) of the AAT Act).
92 Section 68AA(1) of the AAT Act provides as follows:
68AA How documents may be given to a person
Post
(1) For the purposes of this Act:
(a) a document, statement, notice or other notification is taken to be given to a person if it is sent by post to whichever of the following addresses is applicable:
(i) if the document, statement, notice or other notification relates to a proceeding and the person has provided an address to which documents in relation to the proceeding may be sent—that address;
(ii) if subparagraph (i) does not apply and the person is not a company—the address of the place of residence or business of the person last known to the person posting the document, statement, notice or other notification;
(iii) if subparagraph (i) does not apply and the person is a company—the address of the registered office of the company; and
(b) a document, statement, notice or other notification so sent by post is taken to have been given, unless the contrary is proved, at the time when the document, statement, notice or other notification would have been delivered in the ordinary course of post.
Note: See also the Electronic Transactions Act 1999.
93 There is no other prescription in relation to the giving of notice or notification of a migration decision of the Tribunal.
94 In WACB 210 ALR 190; 79 ALJR 94, the High Court held that similar words in s 478 of the Act (in the form in which it stood before 2001), when applied to a decision of the Refugee Review Tribunal made pursuant to the Act, required the physical delivery to the applicant personally of the written statement (ie a hard copy thereof) which the Refugee Review Tribunal was required to prepare and to give to the parties pursuant to s 430(1) of the Act.
95 In Minister for Immigration and Citizenship v SZKKC (2007) 159 FCR 565 (at [49]), a Full Court of this Court held that, for the purposes of s 477 of the Act, actual notification to an applicant of a decision of the Refugee Review Tribunal must be accomplished by physical delivery to the applicant personally of a written statement prepared by the Refugee Review Tribunal in accordance with s 430(1).
96 The language of s 477(1) is relevantly identical to the language of s 477A(1).
97 In the case of the Tribunal, the only statutory prescription for the giving of notification of its decision to a party to the proceedings before it is s 68AA. In terms of the reasoning applied by the Full Court in SZKKC 159 FCR 565, that provision is a deeming provision. Applying the reasoning of the Full Court in that case, providing notice of the Tribunal’s decision by post in accordance with s 68AA would be ineffective for the purposes of s 477 and also for the purposes of s 477A.
98 No regulations have been passed which prescribe the manner in which a decision is to be notified for the purposes of s 477A (as to which, see s 477A(4)).
99 Therefore, what is required in the present case for the notification required by s 477A is that a hard copy of the Tribunal’s decision must be physically handed to the applicant personally.
100 As I have already said (at [31] and [36] above), on the evidence before me, the Minister has failed to prove that a hard copy of the Tribunal’s decision was ever handed to the applicant personally.
101 Therefore, the Minister’s objection to competency fails.
102 For the above reasons, the Minister has failed to establish that, in the present case, the time for the making of an appropriate application pursuant to the provisions of s 476A has expired. Accordingly, in my view, the Minister has failed to establish that the Court does not have jurisdiction to hear the applicant’s claims for relief, including those claims set out in MFI‑1.
103 At the Directions Hearing held on 6 February 2008, the legal representative who appeared on that occasion for the Minister informed both the applicant and the Court that the Minister would not take any point that the applicant had failed to use the correct form or had failed to invoke the correct statutory provision as the foundation of her Application.
104 It is apparent from the procedural history of the matter set out by me at [42]–[71] above, that the responsibility for the failure on the part of the applicant to mention the provisions of s 476A of the Act either in her Notice of Appeal or her Amended Notice of Appeal cannot fairly be laid entirely at the feet of the applicant. The form of initiating process chosen by the applicant was suggested by the Registry of the Court. The Minister informed both the applicant and the Court that he would take no point that the wrong initiating process had been used. In any event, despite its technical deficiencies, the document styled Amended Notice of Appeal filed on 1 May 2008 contained essentially the same grounds of review as are to be found in MFI‑1. The earlier Notice of Appeal of January 2008 had mentioned the constitutional writs and there were indications in the affidavit filed in support of the applicant’s Extension of Time Application that she was seeking judicial review of the Tribunal’s decision. The applicant has used the wrong form but her intentions were clear enough. Further, the Minister quite properly and fairly conceded before me that the grounds of review set out in MFI‑1 were notified by the Amended Notice of Appeal filed on 1 May 2008 and that he will suffer no prejudice if I grant leave to the applicant to amend her originating process in the terms of MFI‑1.
105 In those circumstances, I propose to grant to the applicant leave to amend her Application in accordance with the document handed up to me on 11 September 2008 and marked with the letters “MFI‑1”. I will also dispense with any formal requirements for the filing and service of that document.
3. The Section 78B of the Judiciary Act Issue
106 Section 78B(1) of the Judiciary Act is in the following terms:
78B Notice to Attorneys-General
(1) Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.
107 In the present case, two Notices purporting to be notices under this section were given to the Attorneys-General of the States. No notice was required to be given to the Attorney-General of the Commonwealth because the Minister is a party to the proceedings (see s 78B(3)(b) and see Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334 at 336–337).
108 The first Notice is not now relied upon.
109 The second Notice is dated 21 August 2008 and was filed in the Registry of the Court on 22 August 2008. It was served soon after. Every State (except Victoria) expressly declined to intervene. The State of Victoria has not expressly indicated a position, one way or the other. That State did not, however, seek leave to intervene in or be joined as a party to the proceedings.
110 Paragraphs 2, 3 and 4e of that Notice were in the following terms:
2. The question arising is whether the cancellation of the applicant’s section 34 (Absorbed person) visa pursuant to section 501 of the Migration Act 1958 (Cth) (“Act”) is supported by either section 51(xix) or section (xxxvii) of the Constitution?
3. The matter is one involving the pending removal of the applicant from Australia, following the purported cancellation of her visa by a delegate of the first respondent on 28 September 2007, which decision was affirmed by a member of the Administrative Appeals Tribunal on 20 December 2007.
4. The matter arises from the following circumstances:
…
e. The applicant was not absorbed into the Australian community at 2 April 1984 and therefore did not hold a section 34 visa at the time of the first respondent’s act of cancellation. Accordingly, sections 51(xix) and/or (xxvii) of the Constitution do not support the Minister’s purported exercise of section 501 in respect of the applicant.
111 The remaining paragraphs of the Notice set out certain facts concerning the applicant’s arrival and life in Australia.
112 It was submitted on behalf of the Minister that:
(a) The current proceedings involve a matter arising under the Constitution or involve its interpretation;
(b) The applicant has raised for determination by the Court whether, as at 2 April 1984, she was an absorbed person within the meaning of the Act and thus whether she held an absorbed person visa as at September 2007 when the delegate purported to cancel such a visa;
(c) The questions referred to in sub-par (b) above, in turn, require the Court to determine the limits of the Commonwealth’s powers under s 51(xxvii) of the Constitution which is the source of the Commonwealth’s power to deal with immigration matters; and
(d) The second Notice does not fairly disclose the matters summarised in sub-pars (b) and (c) above.
113 In my view, the present proceedings do not involve the interpretation of the Constitution.
114 Nonetheless, do they involve a matter arising under the Constitution? I do not think so.
115 No challenge is made to the validity of any provision of the Act. Rather, the issue relevantly raised by the applicant as to whether or not she became an absorbed person involves the interpretation of the Act, the finding of certain facts and the application of the Act as interpreted to those facts as found. Those issues do not require this Court to determine the limits of s 51(xxvii) of the Constitution. They simply involve the interpretation and application of a particular Commonwealth statute to the applicant’s circumstances. It is true that, in passing the Act, the Commonwealth Parliament relied (at least in part and for some time) upon s 51(xxvii) of the Constitution. But that circumstance does not render every issue of interpretation of the Act and of its application in particular circumstances “matters arising under the Constitution …”.
116 In any event, I am of the opinion that the second Notice more than adequately identifies the so-called constitutional issue discerned by the Minister.
117 The second Notice clearly alerts a reader of it that one of the critical issues in these proceedings will be whether or not the applicant had been absorbed into the Australian community as at 2 April 1984 and thus whether or not she held an absorbed person visa at the time when the delegate purported to cancel her absorbed person visa. Even if, as the Minister contended, a determination that a person is not an immigrant or an alien or is an absorbed person within the meaning of the Act is a determination of the limits of the Commonwealth’s powers under s 51(xix) and/or s 51(xxvii) of the Constitution, the alleged constitutional question embedded in the issues concerning the applicant’s status at the time when her absorbed person visa was purportedly cancelled was sufficiently raised by the clear references to the matters referred to earlier in this paragraph.
118 The reason that the applicant’s attempts to identify the so-called constitutional question may be thought by some to have proven less than satisfactory is because, in my view, no such question truly arises.
119 At the commencement of the hearing before me, the Minister submitted that I was required immediately to decide
(a) Whether a notice pursuant to the provisions of s 78B of the Judiciary Act was required in the present case; and
(b) Whether the second Notice (being the only Notice now relied upon) was adequate notice of the relevant constitutional issue.
120 In the face of that submission and before embarking upon the hearing, I decided that the applicant was probably not required to give a notice pursuant to the provisions of s 78B(1) of the Judiciary Act in the present case and, in any event, even if such a notice were required, that the second Notice was an adequate notice for the purposes of that section.
121 The reasons which I have set out above are reasons published in support of the decision which I made at the commencement of the hearing and to which I have just referred.
4 The Decision of the Delegate
122 Upon the basis of the Issues Paper briefed to the delegate in respect of the applicant, the delegate stated that she reasonably suspected that the applicant did not pass the character test and had not satisfied her that she passed the character test. The delegate then stated that she had decided to exercise her discretion under s 501(2) of the Act to cancel the applicant’s visa. The delegate thereupon purported to cancel the applicant’s absorbed person visa.
123 In her Statement of Reasons in support of the decision which she made to cancel the applicant’s absorbed person visa, the delegate held that the applicant had a “substantial criminal record” (as defined in s 501(7) of the Act) because she had been sentenced to two or more terms of imprisonment (whether on one or more occasions) where the total of those terms was two years or more and thus did not pass the character test because of the operation of s 501(6)(a) of the Act. Having been satisfied of these threshold matters, the delegate proceeded to exercise her discretion in accordance with Ministerial General Direction No 21 – Direction under s 499 Visa Refusal Cancellation Under Section 501 of the Migration Act (Direction No 21). The delegate was bound to address the matters set out in Direction No 21 (see s 499 of the Act).
124 It is not necessary for me to record here the various discretionary matters taken into account by the delegate.
5 The Tribunal’s Decision
125 By its decision made on 20 December 2007, the Tribunal affirmed the delegate’s decision.
126 In the Tribunal’s reasons, the Tribunal set out the details of the many offences committed by the applicant from 1993 to 2007.
127 The Tribunal noted that, in the proceedings before it, the applicant had conceded that she did not pass the character test. The Tribunal remarked that that concession had been correctly made, having regard to the terms of s 501(6) and s 501(7)(d) of the Act. The Tribunal also noted that, as at December 2007, the applicant had been disqualified from holding a motor vehicle licence until 2060.
128 From time to time in its reasons, the Tribunal referred to the first Tribunal decision and specifically quoted some of the reasons and conclusions expressed in that decision. The applicant contended before me that, in some cases, the Tribunal had “incorporated” into its reasons the reasons and conclusions of the Tribunal in the first Tribunal decision and had done so impermissibly. These contentions will be considered in more detail when I come to consider the applicant’s Grounds of Review.
129 The Tribunal then summarised the evidence given by the main witnesses who gave evidence in the proceedings before it. These witnesses were the applicant, Mr Hamish McLelland, Dr Tran and Ms Pickersgill. Mr McLelland described himself as the applicant’s fiancé.
130 Dr Tran had prepared a report dated 16 April 2007 as a court assessment for use in relation to the applicant’s court appearance on 16 April 2007 when she was called upon to answer in the District Court of New South Wales the charge that she had driven a motor vehicle whilst disqualified from doing so.
131 Dr Tran was of the view that the applicant was suffering from attention deficit hyperactivity disorder/syndrome (ADHD). Dr Tran expressed the view that the applicant had manifested a disregard for risks and was at great risk from drugs. Dr Tran was very firmly of the opinion that the applicant was not schizophrenic and did not suffer from any other mental illness.
132 The Tribunal concluded that, in the case of the applicant, the risk of recidivism was very high indeed and, in its view, unacceptably high. At [67] of the Tribunal’s reasons, the Tribunal said:
67. In general terms, I agree with the findings of Deputy President Walker in the Prior Toia Decision; I would add only that as regards recidivism, the risk appears to be considerably higher than even he contemplated, and indeed unacceptably high.
133 In Part G of the Tribunal’s reasons ([64] to [75]), the Tribunal expressed its views in relation to the discretionary factors required to be considered by the relevant decision-maker when considering the cancellation of a visa pursuant to s 501 of the Act. These factors were assessed by the Tribunal by reference to Part 2 of Direction No 21. For the purpose of considering and dealing with certain submissions made on behalf of the applicant, it will be necessary to examine in more detail later in these Reasons for Judgment some of the conclusions and views expressed in this part of the Tribunal’s reasons. For this reason, I set out in full [68] to [75] of the Tribunal’s reasons:
68. It seems clear that the Applicant is likely to be a threat to the Australian community. As to deterrence, it may be, as Mr Seck contended, difficult to determine what effect this decision will have on others, but it is necessary to send a strong message that conduct of this kind cannot and will not be tolerated.
69. As to clause 2.12 of Direction No. 21, concerning the expectations of the Australian community, it is possible that there are some members of the Australian community who would feel that the Applicant’s background is such that she should not be sent back to New Zealand, but that view would, in my opinion, be a minority view only. The description of the Applicant in The Sydney Morning Herald report previously referred to (at paragraph 12 above) in these reasons as a “one-woman crime wave” is by no means inapt.
70. Hardship is relevant in relation to Mr McLelland but he too is unemployed and without qualifications of any kind and likely to remain so. Moreover, he has stated that he would wish to marry the Applicant and would be prepared to be reunited with her in New Zealand. There is, on the face of it, no reason why he should not be permitted to join her in New Zealand, given that I am not aware of [him] being convicted of any criminal offences.
71. Hardship is not relevant to any other member of the Applicant’s family because she has had little or no contact with any of them, and this is so for both those in Australia and also for those (and especially one of her sisters) in New Zealand.
72. It must be remembered that the Applicant is a Maori and so that for her to return to New Zealand should not cause her any significant hardship. Medical treatment is available in New Zealand just as it is in Australia. She said that she did not wish to return to New Zealand because there is nothing for her there, but it must also be noted that there does not seem to be anything for her in Australia. She appears to be estranged from all of the surviving members of her family. Mr McLelland said that she would receive a warm welcome from his parents but there was no evidence before the Tribunal to this effect and indeed what evidence there was tended to suggest precisely the contrary.
73. To attempt to make contact with her sister Maraea, in Australia, has required her to contact the Red Cross although it might be thought that her sister’s name is so uncommon that to find her (probably in Queensland) would not be unduly difficult. Nor, if Mr McLelland is to be believed, will she be deprived of his society because as indicated previously, he said that he would, if necessary, join her in New Zealand. It must be said in respect of Mr McLelland that his evidence was noteworthy for the fact that although his progress to date has little to commend it, he is quite articulate and might conceivably be able to bring about an improvement in what is a most unfortunate situation.
74. As indicated previously in these reasons, the fact that the Applicant came to Australia when she was only one year old and has thus spent nearly all of her life in Australia is a relevant factor. But, she is a threat to the Australian community, and Australia deserves protection against her, given that the risk of recidivism is, as must be obvious, very substantial indeed.
75. In all the circumstances, this is a case where the discretion cannot be properly exercised in favour of the Applicant, and the decision under review must therefore be affirmed.
134 As already noted, the Tribunal affirmed the delegate’s decision.
6 The Applicant’s Grounds of Review
135 The applicant seeks writs of prohibition, certiorari and mandamus directed to the Tribunal in respect of its decision made on 20 December 2007 upon the following grounds (which are set out in MFI‑1):
1. The purported exercise of section 501 of the Act cancelling the applicant’s Absorbed Person Visa was invalid pursuant to the common law principle against “double jeopardy”.
2. The Tribunal erred in its findings relating to the absorption of the applicant into the Australian community.
3. The Tribunal erred in failing to not exercise its discretion to cancel the applicant’s visa on the basis that the applicant did not hold an Absorbed Person Visa at that or any other time.
4. The Tribunal erred in failing to hold that the applicant was not the holder of an Absorbed Person Visa at that or any other time but was the holder of a Special Category Visa and that therefore the delegate of the first respondent was in error in purportedly cancelling a visa that the applicant did not hold.
Particulars
The departmental advice of 20 October 2005 headed “Ms Patricia Carol Toia (dob 5/7/78) - a New Zealand Citizen - Whether Absorbed Person & Whether then Johnson Affected - Release From Immigration Detention” relied upon by the first respondent to conclude that the applicant held an absorbed person visa was incorrect because the applicant did not hold any such visa at that or any other time.
5. The Tribunal erred by improperly adopting a prior decision of the Administrative Appeals Tribunal, namely, the earlier Toia Tribunal decision.
6. The Tribunal erred in making the following findings with no evidential basis to do so.
Particulars
a. That support for the applicant’s plight amongst the Australia [sic] community would be a minority view.
b. That the applicant should suffer no hardship if returned to New Zealand on the basis of her being of Maori descent.
c. That medical treatment was available for the applicant’s condition in New Zealand just as it is in Australia.
d. That there was no reason why Mr McLelland should not be permitted to join the applicant in New Zealand.
7. The Tribunal failed to have proper regard to the medical evidence before it in relation to the relevant considerations in Ministerial Direction No. 21.
8. The Tribunal failed to have regard to a relevant consideration, namely, the extremely unhappy childhood of the appellant where alcohol, violence and abuse by her parents were continuing factors.
9. The Tribunal took into account an irrelevant consideration, namely, The Sydney Morning Herald report describing the applicant as a “one woman crime wave”.
10. The appellant was denied procedural fairness in relation to The Sydney Morning Herald report insofar as the appellant was not given the opportunity to comment on the report by reason of the Tribunal’s rejection of its tender at the hearing and its subsequent use by it in its reasons.
11. The Tribunal misdirected itself by exercising a discretion not to cancel, rather than to cancel, the applicant’s Absorbed Person Visa.
136 I shall deal with each of those grounds in turn.
Ground 1 (The Double Jeopardy Ground)
137 It was submitted on behalf of the applicant that:
(a) The Tribunal’s decision was, to some extent, actuated by a desire to give effect to the concept of general deterrence when the Tribunal said (at [68]):
It seems clear that the Applicant is likely to be a threat to the Australian community. As to deterrence, it may be, as Mr Seck contended, difficult to determine what effect this decision will have on others, but it is necessary to send a strong message that conduct of this kind cannot and will not be tolerated.
(b) The Tribunal incorporated into its reasons a general statement made in the reasons for the first Tribunal decision to the effect that certain young New Zealand citizens living in and around the Bondi area of Sydney had a propensity to commit crimes in the nature of break and enter and steal, minor frauds and the like and that a general message should be sent to that ethnic group that such crimes may not only be visited by a sentence of imprisonment but also by compulsory return to New Zealand;
(c) There was no evidence to support the general statement referred to in (b) above; and
(d) The Tribunal, by incorporating the statement summarised at (b) above into its reasoning in the present case, considered a deterrence of a specific kind rather than of a general nature as a substantive factor justifying the cancellation of the applicant’s visa. This, so it was submitted, constituted extra-judicially imposed punishment in breach of the rule against double jeopardy or, alternatively, involved the consideration of an irrelevant matter for the purpose of affirming the cancellation of the applicant’s visa.
138 In its reasons, the Tribunal did quote from the first Tribunal decision. Included within that quoted portion was a reference to a paragraph in the Tribunal’s reasons for that decision which dealt with general deterrence. However, the specific reference to the first Tribunal decision made by the Tribunal in its 20 December 2007 reasons occurred in a section of the Tribunal’s reasons which, in my judgment, was intended to do no more than record certain facts and matters apparent from that earlier decision which were considered by the Tribunal to be relevant to the risk of recidivism insofar as the applicant was concerned.
140 In the first of those letters, the Department clearly indicated to the applicant that the Minister or his delegate then had under consideration the cancellation of her absorbed person visa. The letter set out in some detail the relevant statutory provisions and gave precise notice to the applicant of the materials upon which the foreshadowed consideration would be undertaken. In this letter, the Department invited a response from the applicant. That response was invited in respect of all relevant matters, including the contents of Direction No 21 and the proper exercise of the discretion called for by s 501 of the Act. The applicant was invited to provide information and arguments as to why that discretion should not be exercised against her.
141 In the second letter, further detail was provided as to the information that was likely to be relied upon by the decision-maker in considering cancellation of the applicant’s absorbed person visa pursuant to s 501 of the Act. As before, the applicant was invited to make submissions and provide information to the decision-maker directed to any relevant matters which she might choose to address.
142 The applicant furnished no information to the Department and made no submissions to the Department in response to this correspondence.
143 In the second of the two letters referred to above, the applicant was expressly advised that the decision-maker proposed to take into account (amongst other things):
Ÿ Previous consideration of the cancellation of your visa under s 501, including information you supplied to the Department, and the decision by the delegate of the Minister to cancel your visa on 30 July 2004. A copy of the decision letter dated 11 August 2004 and your acknowledgement of these documents dated the same day are attached.
Ÿ The decision handed down by the AAT on 2 November 2004. A copy of this document is attached.
144 Thus, the applicant was put on clear notice that reliance would be placed upon the 2004 decisions of the relevant delegate and of the Tribunal and was invited to address any matters of concern which she had with any aspect of those decisions either by way of the provision of further information or the provision of submissions.
145 It is in these circumstances that this and many of the grounds relied upon by the applicant fall for consideration.
146 The mere reference to or mention of the first Tribunal decision or the reasons given for that decision in the Tribunal’s reasons would not be a sufficient ground for this Court to interfere with the Tribunal’s decision. What would be required would be an abandonment by the Tribunal of its obligation to bring an independent mind to its decision.
147 I do not think that the applicant has made out such a case in respect of Ground 1.
148 In my view, in any event, the conclusion expressed by the Tribunal at [68] of its reasons was not founded upon the type of reasoning evident in the first Tribunal decision concerning young New Zealand citizens living in Bondi but rather founded upon the catalogue of criminal offences committed by the applicant over many years. Most of what was quoted from the Tribunal’s reasons delivered in support of the first Tribunal decision was concerned with the applicant’s criminal record.
149 In considering the topic of general deterrence, as it was obliged to do by par 2.11 of Direction No 21, the Tribunal took into account a need to “send a strong message …” that engaging in criminal activity of the kind undertaken by the applicant over many years will not be tolerated in Australia. I do not think that the conclusion in respect of general deterrence expressed by the Tribunal at [68] of its reasons was founded in any way upon the more specific proposition concerning young New Zealand citizens in Bondi advanced in the first Tribunal decision.
150 It cannot be that the Tribunal committed jurisdictional error when it considered the topic of general deterrence in circumstances where it was bound to do so by reason of the terms of Direction No 21. That Direction, as I have already noted, required the relevant decision-maker to take into account the concept of general deterrence and to do so as part of one of the three primary considerations mandated by Direction No 21.
151 Direction No 21 is in two parts. There is also a preamble which is of present significance. The preamble includes the following statement:
The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object the Minister has been given a discretion to refuse or cancel a visa where the visa applicant or visa holder does not pass the Character Test. In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it. The powers conferred under section 499 enable directions to be given, in exercising discretions under section 501, for the protection of the Australian community.
152 Part 2 of Direction No 21 addresses the discretion reposed in the relevant decision-maker pursuant to s 501 of the Act. Part 2 deals with the application of the character test.
153 Par 2.3 of Direction No 21 is in the following terms:
2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
154 General deterrence is an aspect of the criterion referred to in sub-par (a) of par 2.3 and is specifically addressed in par 2.11 of Direction No 21 as follows:
c. general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons
2.11 General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:
(a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and
(b) the visa refusal or cancellation in respect of a non-citizen who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from engaging in similar schemes.
155 Par 2.12 of Direction No 21 records the Minister’s view as to the expectations of the Australian community. In that paragraph, the Minister makes clear that the Australian community expects non-citizens to obey Australian laws while in Australia. He goes on to stress the point that the commission of offences in Australia is a significant reason for refusing a visa application or cancelling a visa already held. The Minister also states in the same paragraph that:
Decision-makers should have due regard to the Government’s view in this respect.
156 All that the Tribunal did in the present case was to comply with the terms of Direction No 21. In my view, there is no punitive element involved and thus no occasion for the engagement of any extended double jeopardy principle. In any event, as presently advised, I do not think there is any room for the concept in a case such as the present.
Grounds 2, 3 and 4 (The Absorption Question)
157 The applicant contended before me that:
(a) Because she did not become an adult until July 1997, the question of whether, before 2 April 1984, the applicant had ceased to be an immigrant for the purposes of s 34(2)(b) of the Act, was to be decided by a consideration of the status of her parents and, in particular, the status of her mother;
(b) Similarly, for the purposes of s 34(2)(c) of the Act, the question of whether the applicant had left Australia within the meaning of that subsection is also to be determined by reference to the movements of her parents and, in particular, those of her mother;
(c) The applicant’s mother was absent from Australia for more than 30 days after 2 April 1984;
(d) The applicant had not ceased to be an immigrant by 2 April 1984; and
(e) Accordingly, if either (c) or (d) is correct, then the applicant was not the holder of an absorbed person visa on 1 September 1994 or on 20 December 2007.
158 In order to deal with the applicant’s argument, it is necessary to understand the statutory framework within which the decisions under challenge were made. French J, as he then was, summarised the relevant provisions at [20] to [25] (pp 503–505) in Johnson v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 494 as follows:
20 The statutory basis for the Minister’s decision is to be found in s 501(2) of the Migration Act which provides:
‘501(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.’
This is to be read in conjunction with s 501(6) and s 501(7). Relevantly, those subsections provide:
‘501(6)For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7));
…
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
…’
21 As the present application raises the question whether or not the applicant was the holder of a ‘absorbed persons visa’ under the Act it is necessary to have regard to the provisions of the Act and Regulations relating to that class of visa.
22 The Migration Act 1958 provided originally for entry into Australia to be regulated by entry permits to be granted by officers of the Department of Immigration (s 6(2)). Such permits could be cancelled by the Minister ‘in his absolute discretion’ (s 7(1)). The Act also provided for the deportation of aliens and immigrants under various conditions (ss 12 and 22). The Migration Legislation Amendment Act 1989 (Cth) enacted comprehensive amendments which included new provisions for the control of entry into Australia involving entry permits and visas. That system of control was succeeded by a visa-only system introduced by the Migration Reform Act 1992 (Cth) which was passed in November 1992. The relevant provisions of that amending legislation came into operation on 1 September 1994 – for a more detailed account of this history see NAAV v Minister for Immigration, Multicultural and Indigenous Affairs (2002) 193 ALR 499 at [386] to [393].
23 Under the Act as it stood prior to 1 September 1994, and by virtue of s 6(1), an immigrant who entered Australia without an entry permit became a prohibited immigrant. Section 8, however, relieved from the operation of those provisions an immigrant entering Australia without an entry permit being:
‘(e) A person who –
(i) is for the time being exempted, by instrument under the hand of the Minister, from the requirements of this Division relating to entry permits; or
(ii) is included in a class of persons who are for the time being so exempted not being a person in respect of whom a declaration is in force under the next succeeding subsection.’
There was an exemption which applied to persons entering Australia from New Zealand who were not required to hold an entry permit. This means that at the time Mr Johnson and his family entered Australia they were not required to hold entry permits and were not prohibited immigrants.
24 The effect of the amendments to the Act which came into operation on 1 September 1994 was that all non-citizens in the migration zone were required to hold a visa. Transitional provisions in relation to New Zealand citizens in Australia were provided for in regulations. Regulation 17 of the Migration Reform (Transitional Provisions) Regulations 1994 provided:
‘(1) This sub-regulation applies to a non-citizen who:
(a) is a New Zealand citizen; and
(b) either:
(i) was in Australia lawfully immediately before 1 September 1994; or
(ii) was, immediately before 1 September 1994 an illegal entrant because of s 20 of the old Act; and
(c) is not taken to hold:
(i) a transitional visa under Part 2 or 3; or
(ii) a Norfolk Island permanent resident visa under regulation 18; or
(iii) a sub-class 995 (Diplomatic) Visa under regulation 19; 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.’
25 Section 34 of the Migration Act provides:
‘34(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 s 20 of this Act as in force then applied;
is taken to have been granted an absorbed person visa on 1 September 1994.
(3) Subdivisions AA, AB, AC (other than s 68), AE and AH do not apply in relation to absorbed person visas.’
159 I respectfully agree with and adopt his Honour’s summary.
160 At the time when the applicant and her mother entered Australia, neither of them was required to hold an entry permit and neither of them was a prohibited immigrant.
161 Further, by reason of the amendments to the Act which came into operation on 1 September 1994, if the applicant did not thereby become the holder of an absorbed person visa, she was:
taken to have been granted a special category visa on 1 September 1994.
162 Thus, in the case of the applicant, by the operation of the amendments to the Act which came into force on 1 September 1994, she was either:
(a) The holder of an absorbed person visa; or
(b) The holder of a special category visa.
163 As a matter of law, no other possibility existed – she had to have had one or other of these visas. An absorbed person visa is a permanent visa. A special category visa is a temporary visa.
165 Before me, the applicant has done a complete about face. Before me, she contended that she never held an absorbed person visa and certainly did not do so in late 2007 when the decisions under challenge were made. Of course, such a contention necessarily carries with it acceptance of the proposition that, at all times since 1 September 1994, the applicant must be taken to have held a special category visa.
168 It is therefore necessary to determine whether the applicant should be taken to have held an absorbed person visa as at 1 September 1994 and at all times thereafter.
169 The question of whether the applicant should be taken to have been granted an absorbed person visa on 1 September 1994 is to be determined by reference to the requirements of s 34(2) of the Act.
170 There is no dispute that the requirements set out in subpars (a) and (d) of s 34(2) are satisfied in the present case. Counsel for the applicant submitted that neither subpar (b) nor subpar (c) of s 34(2) was satisfied as at 1 September 1994.
171 It is clear that the requirements of s 34(2) are cumulative so that, unless the particular non-citizen in respect of whom s 34(2) is under consideration meets all of the requirements set out in subs (2)(a) to subs (2)(d), then that person will not be taken to have been granted an absorbed person visa on 1 September 1994 but will be taken to have been granted a special category visa as at that date.
172 On 28 September 1979, the applicant arrived in Australia with her mother, Sophie Toia. Both the applicant and her mother were New Zealand citizens. They were accompanied by the applicant’s three older siblings who were also New Zealand citizens.
173 It appears from Immigration records tendered in evidence that the applicant’s father, John Christopher Toia, entered Australia on 1 September 1979, that is to say, approximately one month before Sophie Toia.
174 There is no direct evidence before me as to whether or not, as at September 1979, the applicant’s parents were living together as a couple. No evidence was tendered from witnesses who might have been able to provide relevant information directed to that issue. The applicant did provide some evidence of a very general nature of her time with her parents during the years she spent with them but that evidence did not specifically address the question of whether her parents were together as at September 1979. Of course, this is hardly surprising given that, as at that date, the applicant was only one year of age.
175 The Immigration records tendered in evidence are not consistent on this point.
176 In September 1979, Sophie Toia said that she had never been married and John Toia said that he was divorced.
177 At that time, Sophie Toia said that she was a “solo parent”. She nominated an address in Brisbane where she proposed to live. John Toia nominated a different address in Queensland as the place where he intended to live. He said he was going to live in Burleigh Heads which is not a suburb of Brisbane but is a coastal town south of Brisbane.
178 It seems to me that I should find that the applicant’s parents were mostly together as a couple during their time in Australia and thus, for the purposes of the applicant’s arguments directed to s 34 of the Act, it is to the status of and facts concerning her parents (and not merely her mother) to which regard must be had. I also observe, however, that I do not think my conclusions would be any different if attention is paid solely to the position of the applicant’s mother, Sophie Toia.
179 I now turn to deal with the s 34(2)(c) requirement.
180 The particular matter relied upon by the applicant as giving rise to the conclusion that the requirements of s 34(2)(c) of the Act had not been satisfied as at 1 September 1994 in her case, was that, on 24 May 1989, her mother left Australia and went to New Zealand, and did not return to Australia until 29 June 1989, a period of some 36 days after her departure.
181 The evidence establishes that Sophie Toia did leave Australia on 24 May 1989, travelled to New Zealand, remained in New Zealand for a little over one month and returned to Australia on 29 June 1989.
182 As at the date of that trip, the Immigration records show that Sophie Toia had said that she was divorced. There was nothing in the Immigration records tendered in respect of John Toia which suggested that he travelled with Sophie Toia to New Zealand in mid 1989.
183 It is also common ground that the applicant did not travel to New Zealand with her mother in mid 1989. As I mentioned at [3] above, the applicant has never left Australia since her arrival here in September 1979.
184 Counsel for the applicant submitted that, for the purposes of s 34(2)(c), the expression “left Australia” means:
(a) Going outside the territorial limits of Australia; and
(b) Remaining outside those limits for a period in excess of 30 days.
185 The submission was that the expression “left Australia” had that meaning by reason of the operation of subsections (8), (9) and (10) of s 4 of the Act as it stood immediately before 1 September 1994.
186 Those subsections are in the following form:
(8) 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.
(9) For the purposes of this Act, a person shall not be deemed to have entered or re-entered Australia, or to enter or re-enter Australia, where, having left Australia:
(a) the person returned or returns to Australia within the prescribed time after the date on which he or she left Australia, in the vessel in which he or she left Australia after having remained, at all times during his or her absence from Australia, a passenger in, or a member of the crew of, that vessel; or
(b) the person returned or returns to Australia without having entered any country other than an external Territory to which this Act does not extend; unless the person was, at the time when he or she left Australia, a person whose deportation had been ordered.
(10) In subsection (9), “the prescribed time”, in elation to a person, means:
(a) 30 days; or
(b) where, at the time when that person left Australia, there was in force an instrument under the hand of an authorized officer approving a longer time as the prescribed time in the case of that person or a class of persons in which that person was included – that longer time.
187 I do not agree with the submission made on behalf of the applicant as to the meaning of left Australia for the purposes of s 34(2)(c) of the Act. In my view, there was no warrant for the imposition of a cumulative requirement that the particular person whose movements are under consideration be absent for a period in excess of 30 days. It seems to me that the only requirement is that they go outside the territorial limits of Australia. This was the view expressed by Ryan J in Moran v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 1 at [30] and I see no reason not to follow his Honour.
188 On the evidence, both Sophie Toia and John Toia went outside the territorial limits of Australia after 2 April 1984 although, as I have already mentioned, the applicant never left Australia, let alone did so after 2 April 1984. Sophie Toia and John Toia did not always take these trips together.
189 The critical question, therefore, for the purposes of my consideration of the s 34(2)(c) criterion is whether the requirement embodied in that subparagraph can be satisfied, in the case of a minor, if the custodial parent or parents leave Australia after 2 April 1984 (even if the minor does not) or whether the requirement is directed only to the movements of the minor.
190 The applicant submitted that, by a process of reasoning comparable with that which has been recognised as appropriate in respect of the requirement set out in s 34(2)(b), I should have regard only to the movements of the custodial parent or parents, in this case Sophie Toia and perhaps John Toia.
191 I do not agree.
192 It seems to me that s 34(2)(c) is directed at the non-citizen in respect of whom consideration is being given under s 34, and to that person alone, whether that person is an adult or a minor. I do not think that there is any warrant to import into a consideration of s 34(2)(c) the kind of reasoning which has been deployed in the authorities in respect of the requirement set out in s 34(2)(b). The concept of leaving Australia is clear enough. There is no room for subjective or qualitative judgments. Either the person in question left Australia or he/she did not. The expression “… ceased to be an immigrant …” involves vastly different considerations.
193 For these reasons, in the present case, because the applicant herself has never left Australia (and certainly did not do so between 2 April 1984 and 1 September 1994), I find that the requirements of s 34(2)(c) have been satisfied.
194 I now turn to deal with the question of whether or not the requirement set out in s 34(2)(b) has been satisfied in the present case.
195 In Johnson 136 FCR 494 at [33] to [47] (pp 506–511) French J reviewed a number of authorities which dealt with the statutory criterion “… ceased to be an immigrant before 2 April 1984 …” (s 34(2)(b) of the Act). At [45] to [47] (pp 510–511), his Honour said:
45 The general statements made about the concept of absorption offer little in the way of practical guidance for determining whether a person has become part of the community, either as an adult or as a minor who comes in with a family unit. In Koon Wing Lau v Calwell, Dixon J said (at 577):
“... there does not appear to be any general agreement as to the tests for the application of this very vague conception.”
The word “absorption” is an evaluative metaphor which invites consideration of a variety of factors relevant to its application. It is important to bear in mind also that it is a metaphor used in aid of the resolution of a question of constitutional fact, namely whether the person to whom it is applied has ceased to be an immigrant. The metaphor must not obscure the primary question.
46 Having regard to the primary question, factors relevant to whether a person has become a member of the Australian community in the way that that concept was discussed in Potter v Minahan might be thought to include 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.
This list of factors is plainly not exhaustive. Rather, it illustrates the multi-dimensional character of the judgment involved. It is also necessary in making that judgment to avoid narrow mono-cultural assumptions about what constitutes membership of the Australian community. This may not always make the judgment an easy one -- see generally D Wood, “Deportation, The Immigration Power and Absorption into the Australian Community” (1986) 16 Fed Law Rev 288.
47 In the case of a child coming to Australia as part of a family unit it is necessary to apply the judgment about membership of the community to the child's parents or other adult guardians or carers with whom he or she has come and with whom he or she lives. At the time relevant to the present case Mr Johnson was aged nine years. It is therefore necessary to have regard to the evidence about his parents’ migration to, and settlement in, this country and their position in April 1984.
196 I also respectfully agree with these observations made by his Honour and propose to follow the approach taken by his Honour in Johnson 136 FCR 494. This approach was expressly approved by a Full Court of this Court in Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236 at [49] to [56] (pp 247–249) and by Branson J in Charlie v Minister for Immigration and Citizenship (2008) 171 FCR 44 at [31] and [32].
197 A non-citizen who has lawfully entered Australia and has been absorbed into the Australian community ceases to be an immigrant and passes beyond the scope of the immigration power (per French J in Johnson 136 FCR 494 at [44] (p 510)). In this sense, the question of absorption involves the determination of a constitutional fact.
198 In the present case, as I have already said, the applicant came to Australia with her mother on 28 September 1979.
199 By 2 April 1984, the applicant had resided in Australia continuously for approximately four and a half years. By that date, she was almost six years old.
200 I have already referred to the evidence concerning the question of whether the applicant’s parents were living together as at September 1979 (as to which see [172] to [178] above).
201 However, the applicant made statements, both to the delegate and to the Tribunal, about certain facts, matters and events which she could remember having taken place in the early years after her arrival in Australia. The broad thrust of that general evidence was that her parents were more or less together in the early years after their arrival in 1979. According to the applicant, the applicant, her parents and her siblings lived as a family unit in those years.
202 As is apparent from what I have already said at [164] to [167] above, the applicant did not contend to the delegate or before the Tribunal that she was not the holder of an absorbed person visa but rather accepted that she did hold such a visa at all relevant times. The first time that she contended that she did not hold such a visa was in 2008 in the present proceedings.
203 Although I do not think that the applicant’s change in position is a ground for not entertaining the submissions which she now makes, her significant and late change of position must be taken into account when I come to evaluate such evidence as there is concerning absorption.
204 The Immigration records in respect of Sophie Toia demonstrate that, upon her arrival in Australia in September 1979, she told Immigration authorities that she intended to migrate to Australia and intended to live with relatives in Brisbane.
205 The Immigration records in September 1979 in respect of John Toia establish that he also told Australian Immigration authorities that he was migrating to Australia, had been employed as a driver/sprayman, intended to work in Australia and intended to live in Queensland (although, as I have already mentioned, not at the same address as Sophie Toia).
206 The Immigration records also establish that, from time to time after 1979, Sophie Toia and John Toia appear to have resumed their relationship although, it is fair to say that those records also indicate that the relationship may well have been an “on again/off again” relationship.
207 Those records demonstrate that, although both Sophie Toia and John Toia left Australia from time to time on brief holiday excursions, they always returned to Australia until 1999 when they moved back to New Zealand. Sophie Toia did not leave Australia at all until August 1987. John Toia left Australia for the first time in May 1991.
208 Those records also show that both Sophie Toia and John Toia left Australia for the last time on 23 July 1999 and did so on the same flight. They travelled to New Zealand on this occasion and did not return to Australia. They both died in 2001 or in early 2004 (the evidence as to this is inconsistent and scant).
209 Immigration records also show that Sophie Toia told Australian Immigration authorities in August 1987 that she was an Australian resident who was visiting New Zealand for a holiday and that she was then married.
210 In mid 1989, Sophie Toia told Australian Immigration authorities that she was an Australian resident who was visiting New Zealand for a holiday and that she was then divorced.
211 In late October 2005, after the applicant had been released from Immigration detention, the applicant’s then solicitor informed the Minister by way of formal email communication that both of the applicant’s parents had had jobs in Australia and that two of her siblings still lived in Australia. In statements made both to the delegate and to the Tribunal, the applicant gave evidence to the general effect that both her parents had had jobs in Australia in the early years (being a reference to the period soon after the applicant’s arrival in Australia in 1979).
212 It is also a fair inference and one which I am prepared to draw from the above material and from statements made by the applicant in a Statutory Declaration made in 2004 that her parents were back together before 1984 (if they had ever been apart) and were cohabiting at a caravan park at Vineyard near Sydney for the greater part of their early years in Australia.
213 I accept the submission made on behalf of the applicant that, for the purposes of my consideration of the criterion set out in s 34(2)(b), in the present case, I should have regard to the status of the applicant’s parents. In the period from 28 September 1979 to 2 April 1984, the applicant was a very young minor. She was not quite six years old by 2 April 1984. I am also prepared to infer that, in that period, the applicant lived with her mother and that her father was generally living with them although not all the time. Further, I am entitled to look at facts, matters and events which occurred after 2 April 1984, if those things can rationally cast light on the position as at 2 April 1984 (but not otherwise). In this regard, there is nothing to suggest that the family had not come to Australia to settle permanently. The trips undertaken by the parents are not inconsistent with such a conclusion.
214 I make the following findings:
(1) As at 2 April 1984, approximately four and a half years had elapsed since the arrival of Sophie and John Toia in Australia;
(2) Right from the start, that is to say, from September 1979, both Sophie Toia and John Toia intended to settle in Australia and live here permanently with their children as a family unit. This is demonstrated by the terms of the communications which they made to the relevant Immigration authorities in September 1979 and subsequently; by the fact that both of them did not leave Australia at all for many years after 1979 (eight years in the case of Sophie Toia and almost 12 years in the case of John Toia); by the fact that both were employed in Australia, especially in the early years; and by the fact that Sophie Toia obtained welfare benefits for at least some of the time that she lived here.
(3) There were family members resident in Australia with whom the applicant and her parents were in regular contact during the period September 1979 to 2 April 1984; and
(4) The family seems to have socially interacted with friends who were members of the Australian community.
215 In my view, the above facts and matters are sufficient for me to find that the applicant had been absorbed into the Australian community by 2 April 1984 and thus had, by that date, ceased to be an immigrant within the meaning of s 34(2)(b) of the Act.
(a) The evidence supported a conclusion that Sophie and John Toia had always intended to return to New Zealand and did not intend to settle permanently in Australia;
(b) The evidence justified an inference that the applicant’s parents continued to see themselves culturally as Maori;
(c) The abuse which the applicant suffered at the hands of her parents far exceeded that which would otherwise be tolerated by the Australian community;
(d) There was no evidence of any family or other close family ties in Australia;
(e) There was no evidence of any economic ties in Australia such as property ownership; and
(f) Sophie Toia had left Australia after April 1984 for a period greater than 30 days.
217 The evidence did not support the matters noted at pars (a) and (b) of [216] above. The evidence did not support a conclusion that the applicant had suffered any regular significant physical violence or abuse at the hands of her parents before 2 April 1984. The evidence did support a finding that there were family ties in Australia. The movements of Sophie and John Toia in and out of Australia after 1979 were not supportive of a conclusion that the family had not been absorbed into the Australian community. The applicant did have evidentiary support for the proposition that, as at 2 April 1984, her parents did not own property in Australia.
218 In my view, the lack of economic ties to Australia and the brief trips overseas which took place from 1987 onwards are not sufficient to overcome the impact of the findings which I have made at [214] above.
219 Some reliance was also placed on the applicant’s subsequent criminal activities. However, these began many years after the relevant date and cannot, in my view, weigh in the balance against a finding of absorption.
220 The applicant also submitted that I should apply what her Counsel called an implied statutory bar of five years before an immigrant is capable of being absorbed into the Australian community. This submission was founded upon some remarks made by Deane J by way of obiter dicta in Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186; (1981) 54 FLR 334. In my view, there is no such implied bar. French J in Johnson 136 FCR 494 did not invoke such a bar. The other members of the Court in Kuswardana 35 ALR 186; 54 FLR 334itself did not expressly agree with the dictum of Deane J. In my view, the application of such a bar, as an inflexible rule, introduces into the consideration of the criterion found in s 34(2)(b) of the Act an unnecessary and inappropriate level of rigidity. For example, it would mean that in every case where the relevant non-citizen had arrived after 2 April 1979, a finding would need to be made that, by reason of this fact alone, absorption had not occurred. In my judgment, as a matter of construction of the Act, no implied probationary period is prescribed.
Ground 5 (The Lack of Independent Mind Ground)
221 This ground was hardly pressed. It was only supported by a very general assertion that the Tribunal had not brought an independent mind to the exercise confronting it.
222 I do not agree.
223 This ground has not been made out.
Ground 6 (The No Evidence Ground)
224 The matters relied upon in support of this ground were:
(a) There was no evidence before the Tribunal to support a finding that only a minority within the Australian community would feel that the applicant’s background is such that she should not be sent back to New Zealand (see the Tribunal’s reasons at [69]);
(b) There was no evidence before the Tribunal to support a finding that the applicant would suffer no hardship if deported to New Zealand or that there was nothing for her in Australia (reasons at [70] and [72]) nor was there evidence to support the finding that there was no reason why Mr McLelland, a person whom the applicant asserted was her fiancé, would not be permitted to join the applicant in New Zealand.
225 The Minister submitted generally in respect of this ground that the applicant could not logically or rationally advance the submissions which had been made on her behalf in circumstances where, as I have mentioned at [139] to [147] above, she was given every opportunity to provide information and material as well as submissions to the decision-makers during the course of the decision-making process but chose not to do so. The Minister submitted that, if a person in the position of the applicant, having been given the notices she was given in July and September 2007, did not expressly raise particular matters for the consideration of the decision-maker, then she can hardly turn around subsequently and complain that those matters were not taken into account by the decision-maker or not addressed by the Minister in evidence. The gravamen of this submission was that, in the absence of some statutory prescription requiring that the decision-maker take into account a particular matter, it was for the person in the position of the applicant to raise such matters as she considered appropriate going to the exercise of the discretion called for by s 501 of the Act.
226 I think that these submissions are correct.
227 In my view, in circumstances where the applicant raised no particular matter at all either with the Department or with the Tribunal as matters which she required be considered by each of those decision-makers, she can hardly complain now that certain matters were not considered or that there was no evidence dealing with those matters. Of course, as I have said, if the relevant governing statute required that a particular matter be considered, then the decision-maker would be required to consider that matter whether or not the applicant had raised it. However, the complaints made in the present case are not in this category.
228 For this reason, the submissions made in respect of Ground 6 must fail and I find that Ground 6 has not been made out.
229 There are also other reasons as to why Ground 6 has not been made out.
230 As to the first of the No Evidence Grounds, the Minister submitted that Direction No 21 was a sufficient basis for an expression of the views of the Australian community and thus for the remark made by the Tribunal in its reasons at [69]. Further, the Minister submitted that the Tribunal was entitled to draw upon its own impressions as a member of the Australian community when expressing the type of subjective judgment contained in the finding under challenge.
231 I agree with those submissions made on behalf of the Minister.
232 The terms of Direction No 21 in respect of the expectations of the Australian community invoke the application of standards reflected by the representatives of that community in Parliament and the impressions of the expectations of that community held by the Tribunal itself. In my view, it is not incumbent upon the Tribunal to undertake some detailed or complex survey of the views of the Australian community in respect of behaviours such as those engaged in by the applicant.
233 In answer to the second No Evidence ground, the Minister submitted that the applicant’s submissions were no more than an attempt to cavil with the merits of the Tribunal’s decision because that decision did not descend into further detail in support of its broad and generalised observation. The Minister submitted that the Tribunal had considered a number of matters at a general level when revisiting the exercise of discretion required by s 501 of the Act.
234 The matters relied upon and, in particular, the matters referred to at [72] of the Tribunal’s reasons, were all matters about which the Tribunal was entitled to express conclusions and did not, in my view, require specific and detailed evidence in order for those conclusions to be sustained.
235 As to the final No Evidence ground, there was no evidence that Mr McLelland could not join the applicant in New Zealand, if he chose to do so. There was no claim by the applicant that he would be unable to do so, if he chose to do so. All that the Tribunal did in respect of this matter was to observe that, as the evidence stood, there was nothing before the Tribunal which supported a conclusion that Mr McLelland would be unable to join the applicant in New Zealand, were she deported.
236 In any event, these grounds do not involve findings of fact which are critical to the decision. Even if these grounds were made out, they would not constitute jurisdictional error.
Ground 7 (The Medical Evidence Ground)
237 It seems to me that, as was the case in respect of Ground 6, it was for the applicant to raise any particular concerns which she had in respect of her needs for medical treatment. She did not do so.
238 For this reason, in my view, she can hardly complain now that consideration was not given in more detail to the medical conditions which she now contends she has.
239 The evidence demonstrated that the applicant suffered from ADHD. There was no evidence to suggest she suffered from any other specific medical condition. In particular, there was no evidence that she suffered from a recognised mental illness.
240 The evidence suggested that the applicant had never been treated for the condition known as ADHD. This is so, notwithstanding that treatment was available to her in Australia and notwithstanding that she had become aware of Dr Tran’s diagnosis that she was suffering from ADHD from early 2007.
241 The applicant submitted that the decision-maker was required to consider the effect that deportation would have on the appellant in light of her specific medical condition (ADHD) and had failed to do so.
242 I do not agree.
243 A fair reading of the Tribunal’s reasons leads to the conclusion that the observations made at [72] of the Tribunal’s reasons were directed, not only to the ADHD condition but also to the potential need for the applicant to receive medical treatment for drug and alcohol abuse.
244 The Tribunal was entitled to proceed upon the basis that treatment for all of these conditions was available in New Zealand in circumstances where no suggestion to the contrary was made by the applicant and the Tribunal was entitled to regard New Zealand as having comparable medical services to those provided in Australia in the absence of any suggestion to the contrary being made either by or on behalf of the applicant.
Ground 8 (The Child Abuse Ground)
245 The applicant submitted that the Tribunal was bound to consider the applicant’s unhappy and abusive childhood.
246 This is not a mandatory consideration when one has regard to the terms of Direction No 21.
247 In any event, the Tribunal set out, in some detail, the applicant’s evidence concerning her childhood.
248 In my view, therefore, the conclusions stated as part of the remarks in [69] of the Tribunal’s reasons reflect a consideration by the Tribunal of this matter. However, the Tribunal did not consider that this aspect of the applicant’s life, either alone or in combination with other facts and matters, was sufficient to justify an exercise of discretion pursuant to s 501 of the Act in favour of the applicant.
249 For these reasons, I do not think that the applicant has made out this ground.
Grounds 9 and 10 (The Sydney Morning Herald Report)
250 The applicant submitted that, notwithstanding that the Tribunal had not admitted a particular newspaper article published in The Sydney Morning Herald into evidence, it nonetheless relied upon the contents of that article in a way which was not fairly notified to the applicant. It was also submitted that, by acting in this way, the Tribunal had taken into account an irrelevant consideration. In particular, the submission made on behalf of the applicant was that the Tribunal was not permitted to use the newspaper article as a basis for concluding that only a minority of the Australian community would not be in favour of deporting the applicant to New Zealand in light of her criminal record.
251 In my view, the Tribunal did not make use of The Sydney Morning Herald article in that way. In my view, the reference to the article at [69] of the Tribunal’s reasons was no more than a compendious reference to the applicant’s lengthy and serious criminal record. The Tribunal merely prayed in aid the colourful description of the applicant’s criminal activities made in that report (viz that she was a “one woman crime wave”) as a convenient way of briefly describing the criminal record which had been detailed fully in the earlier part of the Tribunal’s reasons.
252 In my view, no impermissible use was made of this newspaper report. Accordingly, I do not think that these grounds have been made out.
Ground 11
253 This ground is based upon the reasoning of Emmett J in Lesuma v Minister for Immigration and Citizenship (No 2) (2007) 99 ALD 514; [2007] FCA 2106 especially at [30] to [36].
254 I do not think that this ground has been made out. A fair reading of the Tribunal’s reasons as a whole demonstrates that it asked itself the right question, that is to say, that it put itself in the position of the primary decision-maker and exercised for itself the discretion reposed in it. In my view, it appropriately approached the decision which it was called upon to make as requiring it to decide whether or not to exercise the discretion to cancel. Therefore, in my view, the Tribunal did not fall into error.
255 For these reasons, I am of the view that Ground 11 has not been made out.
7 Conclusions and Orders
256 It follows from the above reasons that the applicant has failed to make out her challenge by way of judicial review of the Tribunal’s decision and that her further amended application must be dismissed with costs. These are the orders which I propose to make.
| I certify that the preceding two hundred and fifty-six (256) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. |
Associate:
Dated: 27 February 2009
| Counsel for the Applicant: | Ms RA Pepper and Mr JB Spinak |
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| Solicitor for the Applicant: | Chang, Pistilli & Simmons |
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| Counsel for the Respondents: | Mr SB Lloyd SC |
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| Solicitor for the First Respondent: | Clayton Utz |
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| Solicitor for the Second Respondent: | The Second Respondent submitted |
| Date of Hearing: | 11 September 2008 |
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| Date of Judgment: | 27 February 2009 |
