FEDERAL COURT OF AUSTRALIA

Parker v Minister for Immigration and Border Protection [2016] FCA 938

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    Section 501(2) of the Migration Act 1958 (Cth) gives the Minister the power to cancel a visa on character grounds. The Minister may exercise that power personally or delegate its exercise to someone else. In the present case the Minister exercised the power personally. The visa holder contends that in so doing the Minister made a decision which was so unreasonable that no reasonable decision-maker would have made it. In Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 at [103] a Full Court (Allsop CJ, Griffiths and Wigney JJ) observed:

Where the Minister exercises that power personally, Parliament has expressly provided for no merits review of that decision, unlike the situation which prevails if the decision is made by the Minister’s delegate. In such circumstances, the Court must be astute to ensure that it is not seen to engage in a form of impermissible merits review under the guise of the legal unreasonableness ground of judicial review. In such circumstances, one would expect (consistently with the observation of Gageler J in [Minister for Immigration and Citizenship v Li (2013) 249 CLR 332] at [113]) that in the case of decisions made by the Minister personally, intervention on the ground of legal unreasonableness would be fairly rare and would only occur in relatively clear cases. …

2    The fundamental question in the present case is whether this is such a case.

Section 501

3    Section 501 relevantly provides:

(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.

…

    Character test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); …

…

Otherwise, the person passes the character test.

    Substantial criminal record

(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; …

…

…

    Pardons etc.

(10)    For the purposes of the character test, a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if:

    (a)    the conviction concerned has been quashed or otherwise nullified;…

    …

…

Relevant facts

4    The applicant, Tammie Parker, now in his mid-30s, was born in New Zealand but has lived in Australia since infancy. He never took out Australian citizenship.

5    On 2 January 2006 Mr Parker was granted a Class TY Subclass 444 Special Category (Temporary) visa.

6    On 24 September 2010 he was convicted in the Local Court of New South Wales sitting at Penrith of the following offences, each of which was described by the sentencing magistrate as “serious”, and sentenced to 13 months’ imprisonment on each of the three charges, to be served concurrently:

    demanding property with menaces with intent to steal;

    being armed with intent to commit an indictable offence; and

    threatening a person with intent to influence a witness.

7    At the same time he was convicted of two counts of failing to appear in accordance with a bail undertaking (for which no penalty was imposed), use intimidation/violence to unlawfully influence person (for which he was sentenced to a term of imprisonment of 10 weeks and 6 days, backdated to 27 September 2009) and common assault (for which he was sentenced to a term of imprisonment of 5 months, backdated to 17 March 2010).

8    On 21 November 2013 Mr Parker was notified that his visa may be liable for cancellation under s 501(2) of the Migration Act on account of his substantial criminal record.

9    On 3 February 2014, however, the Minister’s Department wrote to Mr Parker advising him that his visa would not be cancelled and at the same time issuing him with a formal warning, which he acknowledged in writing on 7 March 2014, in the following terms:

Please note that visa cancellation may be considered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.

(Emphasis in original.)

10    On 19 June 2014 Mr Parker was convicted in his absence at the Local Court of New South Wales sitting at Waverley of the charge of “Possess or Use A Prohibited Weapon Without Permit” and fined $700 (“the 2014 conviction”). The prohibited weapon in question was a capsicum spray. He did not lodge any appeal and on 24 July 2015 the Minister’s Department wrote to him, reminding him of the warning given to him in March 2014, and advised that “new consideration” was being given to cancelling his visa under s 501(2) of the Migration Act. He was invited to comment or provide information on whether he passed the character test and, in the event that the decision-maker suspected he did not, whether the decision-maker’s discretion should be exercised against him.

11    On 25 August 2015 Mr Parker acknowledged receipt of the notice, consented to the release to the Department of information on his criminal, psychiatric, medical and parole history and completed a “Personal Details Form”.

12    On 19 October 2015 Mr Parker was interviewed by a Departmental officer. The stated purpose of the interview was to give him an opportunity to make known any personal or other issues he wished the decision-maker to take into account. But the interviewer also questioned him about the circumstances leading to the 2014 conviction and various other matters touching on the prospect that he might reoffend. The first question was in these terms:

You previously underwent a character assessment on account of your substantial criminal record and the department notified you on 3 February 2014 of the decision not to cancel your visa. However, you were also formally warned, in writing, about the consequences of further offending, in terms of your migration status, which you acknowledged, in writing, on 7 March 2014. Less than three months later you re-offended, resulting in this current character assessment. Can you describe the circumstances of your offending on 23 May 2014 that led to the conviction of Possess Or Use A Prohibited Weapon Without Permit on 19 June 2014?

13    Mr Parker’s answer was:

“I was still a member of the Comanchero’s then and that is why I was pulled over by the police that led to the conviction. The police were pulling everyone over on the street. The vehicle I was in was Ritta’s [Spouse] and she had a peppers spray in the car. I got it for her for protection but I didn’t tell the police that it was hers because I didn’t want to get her into trouble. I realise that was wrong. I told the police it was mine. They charged me and they gave me the option there and then to take an early guilty plea. They said I would not need to attend court and I would be issued with a fine and so I did. They confiscated the spray as well. There was no intention for me to use the spray as it was for Ritta’s protection and I had forgotten it was even in the car.”

(Italics in original.)

14    The decision to cancel Mr Parker’s visa was made by the Minister personally on 2 March 2016. I was informed that he has been held in detention since 11 March 2016 (this also being the date he acknowledged receipt of the Minister’s decision).

15    A month after the Minister made his decision, however, Mr Parker applied to have the 2014 conviction annulled and on 13 April 2016 a Local Court magistrate granted Mr Parker’s application, whereupon he entered a plea of not guilty and is awaiting trial.

16    Mr Parker now applies, amongst other things, to have the Minister’s decision quashed. Section 477A of the Migration Act, however, provides that any application to this Court be filed within 35 days from the date the decision was made. This application was filed five days after the period had lapsed. So in order to proceed, Mr Parker required an extension of time. On 6 June 2016 I granted him an extension.

The Minister’s decision

17    In deciding that Mr Parker did not pass the character test the Minister relied on the three sentences of 13 months of imprisonment imposed on 24 September 2010.

18    The Minister then proceeded to consider whether to exercise his discretion to cancel the visa. To that end he had regard to Mr Parker’s criminal history, including his 2014 conviction. He assessed the risk Mr Parker would be to the Australian community, balancing a number of factors he considered afforded evidence of Mr Parker’s rehabilitation against his history of repeated offending. On that issue, the Minister said (at [50]–[51]):

50.    On the other hand, in considering whether Mr PARKER is likely to re-offend, I note his history of repeat offences in Australia, which has spanned a number of years despite the imposition of various penalties including fines, custodial sentences and disrespected judicial orders. Mr PARKER received a formal warning from the department about the visa consequences of re-offending which he acknowledged in writing. This warning did not deter him from re-offending and he was convicted of another offence some three months later.

51.    Having regard to his criminal record, I consider that there remains an ongoing likelihood of Mr PARKER re-offending. This likelihood is increased as he continues to be affiliated with a member of the Comanchero outlaw motorcycle criminal gang who, as he has acknowledged, introduced him to the criminal group in the first instance. If Mr PARKER re-offends in a similar manner, the harm to the Australian community would be high and may result in serious psychological and/or physical injuries to members of the Australian community.

The grounds of the application

19    By an amended originating application, filed on 14 June 2016, Mr Parker alleges that the Minister erred in two respects: first, “by making a decision for which there is no jurisdiction and/or which took an irrelevant consideration into account due to the operation of section 501(10) of the Migration Act”; and secondly, because the decision was “so unreasonable that no reasonable person would have made it”.

20    The basis for the allegation that the Minister had no jurisdiction to make his decision is that he took into account the 2014 conviction which was subsequently annulled. The basis for the allegation that the decision was so unreasonable that no reasonable person would have made it is the Minister’s failure to have regard to the possibility that Mr Parker might make a successful application to annul the conviction.

21    It is not in dispute that Mr Parker did not pass the character test. It is unarguable that Mr Parker has a “substantial criminal record” within the meaning of s 501(7) of the Migration Act, even if the conviction which was annulled is ignored. The challenge to the Minister’s decision concerns the exercise of his discretion.

Was the decision made without jurisdiction? Did the Minister take into account a matter he was bound to disregard?

22    Section 4 of the Crimes (Appeal and Review) Act 2001 (NSW) permits a person who has been convicted and sentenced in the Local Court to apply for an annulment of a conviction or sentence if the person did not appear before the court when the conviction or sentence was made or imposed. The application must be made within two years of the conviction or sentence.

23    Section 10(1) provides that:

[o]n being annulled, a conviction or sentence ceases to have effect and any enforcement action previously taken is to be reversed.

24    Mr Parker submitted that, in considering the now-annulled 2014 conviction, the Minister took into account a matter that, by reason of s 501(10) of the Migration Act he was bound to disregard. If the submission were correct, then there is no dispute that this would constitute a jurisdictional error.

25    Without doubt, the Minister took into account the 2014 conviction. He referred to it several times in his reasons. In particular, he took it into account in considering the important question of whether Mr Parker was likely to reoffend. But he was not bound to disregard it.

26    There are two problems with Mr Parker’s argument.

27    First, the conviction had not at that time been quashed or otherwise nullified.

28    Second, the Minister is only bound to disregard a conviction answering that description “for the purposes of the character test”. It is abundantly clear from the Minister’s reasons that for those purposes he ignored the 2014 conviction. He only took it into account once he was satisfied that Mr Parker did not pass the character test. He did so for the purpose of deciding whether he should exercise his discretion to cancel the visa.

29    It seems odd that a conviction which has been quashed or otherwise nullified is not to be taken into account for the purposes of the character test but can be taken into account on the exercise of the discretion. On the face of things, however, that is the course sanctioned by the Parliament. Otherwise, the opening words of s 501(10) would be unnecessary. In construing any statutory provision a court must strive to give meaning to every word in it: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71]. Mr Parker’s contention was not supported by authority. Indeed, a similar argument was propounded in Ngaronoa v Minister for Immigration & Citizenship [2007] FCA 1565 (“Ngaronoa”) and rejected.

30    In Ngaronoa the Minister had cancelled a residency visa on character grounds. In exercising his discretion to cancel the visa, he took into account certain matters going to three charges of which the visa holder had been acquitted. Counsel for Mr Ngaronoa submitted that, in the exercise of his discretion, the Minister was precluded from considering matters upon which a visa holder has been acquitted. The submission was rejected. Jacobson J held at [56]:

What must be borne in mind is that the present case is concerned with the exercise of the discretion, not the determination that Mr Ngaronoa failed to satisfy the character test. Whilst it would not have been open to the Minister to determine that Mr Ngaronoa had a substantial criminal record on the basis of charges on which he was acquitted, that was not the question which fell for determination: cf s 501(10).

31    An appeal from this judgment was dismissed: Ngaronoa v Minister for Immigration and Citizenship (2007) 244 ALR 119; [2007] FCAFC 196.

32    Mr Parker also submitted that the 2014 conviction should not have been considered because of the terms of “ANNEX A” to Direction No. 65 — “Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA” (“the Direction”), being a direction issued by the Minister under s 499 of the Act and, in particular, the following statement in Section 1, dealing with “[d]iscretionary visa cancellation or refusal”:

(4)    In considering a person with unresolved criminal matters, decision-makers should note:

a)    Where a person already fails the character test, any other outstanding criminal matters would not generally prevent consideration of their case under section 501;

b)    A person who does not already fail the character test, and is the subject of criminal charges in Australia, which have not yet been finalised before the relevant court, would not generally be considered under section 501 until the charges have been finally determined; …

33    Mr Parker relied on paragraph b).

34    This submission must also be rejected.

35    First, Mr Parker did not have “unresolved criminal matters” at the time of the decision.

36    Secondly, he is not a person who did not already fail the character test.

37    Thirdly, and in any event, the Direction does not bind the Minister personally “in any legal way”: Ngaronoa v Minister for Immigration and Citizenship (2007) 244 ALR 119; [2007] FCAFC 196 at [16] (Bennett and Buchanan JJ).

38    There was no representation to the contrary, as Mr Parker suggested. In its letter of 24 July 2015 the Department informed Mr Parker that “[i]f the decision-maker is a delegate of the minister, they must follow [the Direction]” but that “[i]f the minister makes a decision personally, he or she is not required to give consideration to [the Direction], though it provides a broad indication of the types of issues that he or she may take into account”.

39    Mr Parker further submitted that in every case where a visa holder is convicted in the Local Court the Minister is bound to inquire into how the conviction was entered and, where the conviction is entered in the absence of the accused, the Minister is not empowered to make a decision on whether or not to exercise his discretion to cancel the visa unless the statutory two-year period in which to apply for an annulment has lapsed. He cited no authority for the proposition and I cannot accept it. Quite apart from the absence of any express constraints on the exercise of the Minister’s discretion, there is nothing in the subject matter, scope and purpose of the legislation which would oblige him to wait for two years on the off-chance that the person might apply for an annulment.

40    For these reasons, the first ground of appeal must fail.

Was the decision so unreasonable that no reasonable person would have made it?

41    Mr Parker contends that the Minister acted unreasonably in disregarding the “representation” that he would not reconsider whether or not to cancel his visa unless he re-offended when the basis for the Minister’s decision was the 2014 conviction which has been annulled “and/or where the Minister was aware that the Local Court had powers to annul the conviction”.

42    This contention must also be rejected.

43    First, s 10 of the Crimes (Appeal and Review) Act states that a conviction ceases to have effect “[o]n being annulled”. Apart from the question of enforcement of convictions or sentences, it says nothing about the legality of administrative decisions made before annulment in reliance on a later-annulled conviction or sentence. None of the authorities to which Mr Parker referred dealt with such a situation.

44    Secondly, the Minister did not renege on any representation, if that is an appropriate way to characterise the warning given in the 3 February 2014 letter. Rather, he did precisely what the Department indicated he might do. He reconsidered the question on the basis that he had learned that Mr Parker had been convicted of another offence. That was true. Mr Parker had been convicted. The conviction had not then been annulled and, at the time, there was no indication that it might be. What was unreasonable about that? How was the Minister to know that it would later be annulled?

45    Thirdly, there is no evidence to suggest that the Minister was aware that the Local Court had the power to annul the conviction. Certainly, neither Mr Parker nor anyone on his behalf drew the matter to the Minister’s attention.

46    It can scarcely be unreasonable for the Minister to make a decision on the evidence before him. Like any administrative decision-maker, the Minister was required to have regard to “the best and most current information available” at the time he made his decision: Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [41]. In this case that included the 2014 conviction. The Minister is not cast with the responsibility of making decisions based on hypothetical considerations.

47    The position might have been different if, before the decision was made, Mr Parker had notified the Minister that he was proposing to apply to have the conviction annulled, but he did not. Indeed, the obvious inference from the sequence of events is that Mr Parker only considered making the application while he was in immigration detention after he learned that his visa had been cancelled.

Conclusion

48    Neither ground is made out. The application should therefore be dismissed. Costs should follow the event.

Associate:

Dated:    12 August 2016