FEDERAL COURT OF AUSTRALIA

Steve v Minister for Immigration and Border Protection [2018] FCA 311

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be refused leave to rely upon grounds 5 and 6 of his proposed further amended application for review of a migration decision, as furnished by email to the chambers of Justice Bromwich on 5 May 2017.

2.    The applicant be granted leave to file, and be required to file electronically by 21 March 2018, a further amended application for review in terms of his proposed further amended application for review, excluding grounds 5 and 6.

3.    The amended application for review be dismissed.

4.    The applicant pay the first respondent’s costs of and incidental to the proceedings.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an application by Mr Pio Steve for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, not to revoke the cancellation of the applicant’s visa.

2    Judgment delivery in these proceedings was held in abeyance pending a constitutional challenge to s 501(3A) of the Migration Act 1958 (Cth). On 7 February 2018, the High Court dismissed that challenge: see Falzon v Minister for Immigration and Border Protection [2018] HCA 2. The reason for deferring judgment despite, unusually, there being no existing ground raising any issue as to the validity of s 501(3A), was that such a ground would have been pursued if Falzon had been decided differently, and there was an unresolved doubt as to the applicant’s standing to commence fresh proceedings in the event that the provision was found to be invalid. This was due to the applicant’s visa having been cancelled and him having not resisted his removal from Australia pending the outcome of these proceedings. I considered it to be in the interests of justice that a decision not be made until the applicant’s position was made clear. There is no such validity issue outstanding and, accordingly, there is no reason to defer judgment any longer.

Overview

3    The applicant, Pio Steve, was born in New Zealand in 1967 and came to Australia with his parents when he was 13 months old. He was granted an Absorbed Person visa on 1 September 1994.

4    On 29 April 2016, the applicant’s visa was cancelled on mandatory character grounds by a delegate of the Minister acting pursuant to s 501(3A) of the Migration Act. The cancellation was mandatory by reason of the applicant’s extensive criminal record. The applicant was invited to make representations as to whether the cancellation of his visa should be revoked. He made such representations on 21 May 2016. On 5 September 2016, a delegate of the Minister decided not to exercise the power in s 501CA(4) of the Migration Act to revoke the original decision.

5    The applicant sought review of the delegate’s decision not to revoke the cancellation of his visa. On 21 December 2016, the delegate’s decision was affirmed by the Tribunal.

6    On 31 January 2017, the applicant applied to this Court for judicial review of the Tribunal’s decision. The applicant has since been removed to New Zealand from Australia. No point was taken as to any inability to pursue his application from overseas via counsel in Australia, nor as to any practical impediments in the event that his application succeeded. That did not amount to any concession on the part of the Minister as to jurisdiction to entertain any appeal that might ensue.

7    With the able assistance of pro bono counsel in Sydney, the assistance of whom is gratefully acknowledged by the Court, the applicant sought leave at the hearing to rely on a “proposed further amended application for review of a migration decision”, advancing five grounds of review. Grounds 1, 4 and 7 do not depart from what is in the existing application, albeit that ground 7 has been renumbered. Former grounds 2 and 3 have been abandoned, while new or revised grounds are sought to be advanced by way of proposed grounds 5 and 6. It is convenient to maintain the numbering of the grounds that were pressed. Those grounds broadly fall into two categories:

(1)    The first ground, comprising existing ground 1, asserts jurisdictional error in certain findings and conclusions by the Tribunal in relation to the expert evidence of Ms Caroline Hare.

(2)    The second to fifth grounds, comprising existing ground 4, proposed grounds 5 and 6 and the existing ground now renumbered as ground 7, concerns the effect of art 12(4) of the International Covenant on Civil and Political Rights (ICCPR), which states that “no one shall be arbitrarily deprived of the right to enter his own country”.

8    It was asserted that the Tribunal fell into jurisdictional error in the second category by:

(1)    failing to consider a mandatory relevant consideration, being art 12(4) (existing ground 4);

(2)    purporting to exercise the power in s 501CA(4) of the Migration Act in relation to the applicant when he was not a “person” within the meaning of the provision as he attracted the fundamental common law right of a subject of the Crown to remain in Australia, as amplified by reference to art 12(4) of the ICCPR (proposed ground 5);

(3)    purporting to exercise s 501CA(4) in relation to the applicant when he was not a “person” within the meaning of the provision as he attracted art 12(4) of the ICCPR (proposed ground 6); and

(4)    making a legally unreasonable decision to affirm the cancellation of the applicant’s visa in circumstances where doing so violated his human rights guaranteed under the ICCPR and the common law (existing ground now renumbered as ground 7).

9    Proposed grounds 5 and 6 require leave to be included in any further process that is filed. That leave was opposed by the Minister in respect of proposed ground 5. The question of leave still has to be determined by the Court irrespective of consent or opposition on the part of the Minister.

10    The Minister also submitted that proposed ground 5 attracted the requirement in s 78B of the Judiciary Act 1903 (Cth) that notices be issued to the various Attorneys-General of the Commonwealth, States and Territories where a matter involving interpretation of the Constitution arises. The Minister’s submission was based on the premise that the applicant’s argument is to the effect that he be held to be a “citizen” of Australia, which would require the Court to adjudicate on the distinction between citizens and aliens implicit in the head of power contained in s 51(xix) of the Constitution. Counsel for the Minister referred to McHugh J’s observations in Singh v the Commonwealth [2004] HCA 43; 222 CLR 322 at [36] that the grant of power in s 51(xix) of the Constitution, by necessary implication or assumption, “recognises that an alien is a person who can be identified by reference to some criterion or criteria that exists independently of any law of the Parliament or indeed of the Constitution itself”.

11    In the circumstances, I am satisfied that there is no need for s 78B notices to be issued. As emphasised by the applicant, no challenge is advanced as to the constitutional validity of the Migration Act, and it is accepted that legislation can validly derogate from art 12(4). The applicant’s argument concerns the interpretation of the Migration Act, not the Constitution. Moreover, I do not consider that the applicant’s arguments engage any underlying constitutional question as to the boundary between “aliens” and “citizens”. I do not accept that the outcome contended for by the applicant is that he be recognised as a citizen. Rather, the applicant’s arguments suggest acceptance of the opposite conclusion, namely, that he is not a citizen, but that the Migration Act should be read in a way that recognises a right he may otherwise hold as a non-citizen.

12    For the following reasons:

(1)    the applicant should be refused leave to rely on grounds 5 and 6 of his proposed further amended application;

(2)    the applicant should be granted leave to file a further amended application for review in terms of his proposed further amended application, except as to grounds 5 and 6, and should be ordered to file such an application within three working days of these reasons being published.

(3)    the balance of the grounds in the further amended application must fail; and

(4)    the further amended application must therefore be dismissed with costs.

The applicant’s history

13    The applicant was born in New Zealand in 1967 and came to Australia with his parents when he was 13 months old. He was granted an Absorbed Persons visa on 1 September 1994. The applicant’s father was a New Zealand citizen. His mother, who was born in Poland, came to Australia with her family after the Second World War. She became an Australian citizen in 1964. The applicant is therefore a New Zealand citizen by birth and probably also by descent.

14    The applicant considers Australia to be his home. In a statement reproduced in the Tribunal’s reasons at [53] he indicated:

I have no memory of or connection to New Zealand. All of my family are Australian citizens. My mother, brother and daughter are here. I grew up, went to school, and have lived my life here, and I consider Australia my home. I have no family or friends in New Zealand, and I have never even been back to visit.

15    The applicant has a troubled background. His father died during his late teenage years and his younger sister died when he was 20 years old. He was introduced to heroin when he was 18 years old and subsequently developed an addiction. Since his late teenage years, he has been “in and out of jail” and has had ongoing problems with substance abuse. His longest period of employment was for three years while residing in Queensland in the late 1990s. He was able to maintain a period of abstinence from drugs during that time. Following his return to Sydney in 2000, however, he was not engaged in employment and relapsed into substance use. In 2008, he sustained serious injuries as a pedestrian in a bus accident. Those injuries have precluded him from further employment.

16    The applicant’s criminal record encompasses convictions dating from 1985 to 2015. A list of those offences was set out by the Tribunal at [14], but does not require reproduction in these reasons.

The cancellation of the applicant’s visa

17    The applicant’s visa was cancelled on 29 April 2016 by a delegate of the Minister acting pursuant to s 501(3A) of the Migration Act. That provision provides that the Minister must cancel a person’s visa if the Minister is satisfied that the person does not pass the character test. The applicant was taken not to pass the character test by reason of his “substantial criminal record”, as defined by ss 501(6)(a) and (7). As will be seen, no issue was taken with that characterisation given the terms of those provisions.

18    Following the cancellation of his visa, the applicant was invited to make representations to the Minister about the revocation of the original decision under s 501CA(4). The applicant lodged a revocation request in accordance with that invitation, advancing reasons why his visa cancellation should not stand.

19    Section 501CA relevantly provided as follows:

501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)    For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

(5)    If the Minister revokes the original decision, the original decision is taken not to have been made.

…

20    On 5 September 2016, a delegate of the Minister refused to exercise the power in s 501CA(4) to revoke the original cancellation decision, with the effect that the applicant’s visa remained cancelled.

Before the Tribunal

21    By application to the Tribunal lodged 8 September 2016, the applicant sought review of the delegate’s refusal to revoke the cancellation of his visa. As the applicant was taken not to pass the character test for the purposes of s 501(CA)(4)(b)(i), and did not dispute this, the relevant question before the Tribunal was whether “there [was] another reason why the original decision should be revoked”: s 501(CA)(4)(b)(ii). In undertaking the review, the Tribunal was also required under s 499(2A) of the Migration Act to have regard to the binding directions of the Minister contained in Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65).

22    Following a hearing for the purposes of the review on 24 and 25 November 2016, the Tribunal affirmed the delegate’s refusal to revoke the cancellation of his visa on 21 December 2016. As recorded in its decision, the Tribunal took into account two primary considerations.

23    First, the Tribunal considered the protection of the Australian community from criminal and other serious conduct. It noted the extent of the applicant’s criminal record and the sentencing remarks of Judge Armitage on 22 May 2015 describing the applicant as a “repeat offender, both in terms of offences of dishonesty and drug offences”. The Tribunal also had regard to a psychological assessment of the applicant dated 7 September 2016, prepared by Ms Caroline Hare, a forensic psychologist. At [40], the Tribunal recorded Ms Hare’s assessment that the aggregate risk of the applicant reoffending was “moderate” based on his history and the changes he had made since his last criminal conviction. Based on the evidence before it, the Tribunal was not persuaded that the applicant would not relapse and reoffend should he be released into the Australian community. It found that, on balance, the protection of the Australian community weighed heavily against revoking the cancellation decision.

24    Secondly, the Tribunal considered the expectations of the Australian community. It did not believe that the applicant’s criminal record would be viewed in a positive way by the Australian community. It found that the Australian community would have a poor view of his short employment history and would recognise the multiple opportunities he had been given to rehabilitate himself and stop his offending behaviour. The Tribunal noted the applicant’s remorse for his criminal conduct and his stated intention to stay off drugs and return to work. It accepted the statement of Mrs Steve, the applicant’s mother (although according it less weight by reason of her relationship with the applicant), that:

He was a good child and is a good person at heart. If someone is in trouble, he is the first person to help them. When he is at home, he helps me around the house. He helps his daughter … by sending her money. Even when he is in jail, he tries to help the other inmates by providing them with advice and support.

25    Ultimately, however, the Tribunal concluded that the factors weighing in the applicant’s favour, including his honest and sincere testimony, were not sufficient to mitigate his extensive criminal record.

26    A third primary consideration, being the best interests of any child, was not of any relevance.

27    The Tribunal then turned to other considerations that were to be taken into account if appropriate. It had regard to the applicant’s close ties to Australia, which weighed heavily in his favour. However, apart from removal from his family, it did not accept that there were any substantial impediments preventing the applicant from commencing a life in New Zealand.

28    Taking into account all of these considerations, the Tribunal did not consider it appropriate to revoke the cancellation decision under review. The refusal by the delegate to revoke the cancellation decision was affirmed accordingly.

GROUNDS OF REVIEW

29    The applicant’s grounds of review, both existing and proposed, were as follows:

1.    The Tribunal made a jurisdictional error by misunderstanding, or overlooking in relevant parts, the expert evidence of Ms Caroline Hare which related to the risk to the Australian community of the Applicant reoffending. [existing ground]

…

4.    The Tribunal made a jurisdictional error by failing to take into account a mandatory relevant consideration in clause 14 of Direction 65, being Australia’s obligation contained in Article 12(4) of the International Covenant on Civil and Political Rights (ICCPR) to ensure that the Applicant was not arbitrarily deprived of the right to enter his own country, being the Commonwealth of Australia. [existing ground]

5.    The Tribunal made a jurisdictional error by purporting to exercise s 501CA(4) of the Act in relation to the Applicant when the Applicant was not a “person” within the meaning of the provision as he attracted the fundamental common law right of a subject of the Crown to remain in Australia as amplified by reference to Art 12(4) of the ICCPR. [proposed ground, leave opposed]

6.    The Tribunal made a jurisdictional error by purporting to exercise s 501CA(4) of the Act in relation to the Applicant when the Applicant was not a “person” within the meaning of the provision as he attracted Art 12(4) of the ICCPR. [proposed ground, leave opposed]

7.    The Tribunal made a jurisdictional error by making a legally unreasonable decision to affirm the cancellation of the Applicant’s visa in circumstances where doing so violated his human rights guaranteed under the ICCPR or at common law. [existing ground]

30    Following the hearing of the matter, the parties drew to my attention the decision of Cayzer v Minister v Immigration and Border Protection [2017] FCA 1189, in which Kerr J dismissed an application for an extension of time to advance three grounds which were in terms that materially correspond to proposed grounds 5, 6 and 7 in this case. That case involved a “rough and ready” assessment of the merits of the proposed amended application for review, in circumstances where the proceedings had already been heard and determined. I do not consider that there is much utility in the debate as to whether Cayzer is determinative of the corresponding grounds in the present proceedings, because I am satisfied, in any event, that the applicant’s grounds must fail. My reasons for that conclusion are as follows.

Existing ground 1

31    As mentioned at [23], the applicant relied at the Tribunal hearing upon an expert report of a forensic psychologist, Ms Caroline Hare. The report addressed the applicant’s risk of reoffending and was relevant to the Tribunal’s consideration of the protection of the Australian community from harm. The Tribunal was required to consider that matter by reason of clause 13.1(2) of Direction 65.

32    Ms Hare’s evidence was relied upon by the Tribunal to conclude that the applicant posed an unacceptable risk to the Australian community. The Tribunal expressly referred to her report at [40] and [42] of its reasons. It stated (emphasis added):

40.    In September 2016, Ms Hare assessed the aggregate risk of Mr Steve reoffending as ‘moderate’ based on his history and the changes he has made since his last criminal conviction. She noted that:

… his comprehensive relapse prevention plan that outlines community-based support agencies (in Sydney where he hopes to reside) that he will be connected with enhances his opportunities to remain drug-free, which is fundamental to managing his likelihood of recidivism.

…

I am also of the opinion that whilst his history does not excuse his behavioural choices, they are better understood within the context of the acute grief and loss he experienced in early adulthood that triggered his reliance on drugs as a dysfunctional means of coping. Having been able to address his coping, it is my opinion that Mr Steve is in a good position to maintain abstinence and lead a prosocial life hereafter, with the support of his family, his friends, and professionals within the Australian community …

…

42.    Based on the evidence before me, including Ms Hare’s assessment in September 2016 that Mr Steve’s risk of recidivism is ‘moderate’, I am not persuaded that Mr Steve will not relapse and reoffend should he be released into the Australian community. In considering the nature of the harm and potential risk to the Australian community if Mr Steve were to reoffend in the future, I am mindful of the nature and seriousness of his past criminal offences.

33    According to the applicant, it should be inferred that the Tribunal did not have proper regard to Ms Hare’s evidence because it mischaracterised her assessment of the applicant’s risk of reoffending. It was submitted that Ms Hare’s evidence was more nuanced than the bald conclusion that the applicant’s risk of recidivism was “moderate”, as was recorded by the Tribunal at [42]. Counsel for the applicant emphasised that while Ms Hare concluded in her report that the applicant’s current risk of reoffending was moderate, there was likely to be a “reduced likelihood of offending” as time went by due to his advancing age. The applicant also emphasised aspects of Ms Hare’s evidence that suggested that his likelihood of recidivism was reduced having regard to his comprehensive relapse prevention plan. In the applicant’s submission, the failure to advert explicitly to these “material” matters compels the inference that the Tribunal overlooked those parts of Ms Hare’s evidence, citing Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at [33]-[34].

34    The applicant’s argument cannot be accepted.

35    Having regard to Ms Hare’s report as a whole, it is plain that Ms Hare’s overall view was that the applicant’s risk of recidivism was moderate. The factors that are said to have been overlooked were encompassed in that assessment. It should be observed that it was put to Ms Hare at the Tribunal hearing that any suggestion in the literature about the reduced risk of recidivism by reason of the applicant’s age would be of little weight given the escalation of his offending over his lifetime. Ms Hare accepted that proposition. Ms Hare was also asked questions about the applicant’s relapse prevention plan, and indicated that she was “still saying that he falls within the moderate range for risk of reoffending but without those plans he would be in a much higher range”. In those circumstances, there was no inconsistency between the details of Ms Hare’s report and the Tribunal’s characterisation of her evidence.

36    In any event, it appears from the Tribunal’s reasons that it understood the competing factors that were weighed in Ms Hare’s overall assessment. At [40], it quoted directly from Ms Hare’s report as to the applicant’s “comprehensive relapse prevention plan”, and Ms Hare’s opinion that the applicant “is in a good position to maintain abstinence and lead a prosocial life hereafter …”. The mere fact that the Tribunal has not explicitly identified each and every factor weighed by Ms Hare, however, does not indicate, let alone establish, error. It suffices that Ms Hare’s report plainly received careful attention by the Tribunal and was amply taken into account, well beyond any jurisdictional obligation to do so.

37    In those circumstances, no inference can be drawn that the Tribunal overlooked key parts of Ms Hare’s evidence. This ground of review (existing ground 1) must therefore fail.

The ICCPR grounds (existing ground 4, proposed grounds 5 and 6 and the existing ground renumbered as ground 7)

38    An essential component of the applicant’s case under the grounds numbered 4 to 7 was the assertion that he has a human right to enter Australia as his “own country”, as enshrined in art 12(4) of the ICCPR. Art 12(4) is in the following terms:

No one shall be arbitrarily deprived of the right to enter his own country.

39    As a threshold to the further consideration of the related grounds of review, the applicant’s assertion by reference to art 12(4) raised two key questions. The first is whether Australia is the applicant’s “own country” for the purposes of the ICCPR. The second is whether the cancellation of the applicant’s visa, by operation of the relevant legislative schemes, has “arbitrarily” deprived him of the right to enter Australia. Those questions are considered below.

Is Australia the applicant’s own country for the purposes of art 12(4) of the ICCPR?

40    It was submitted on behalf of the applicant that this Court should find that the applicant’s “own country” within the meaning of art 12(4) is Australia, notwithstanding his lack of citizenship. The Court was urged to have regard to the applicant’s longstanding residence in this country, his close and enduring ties with Australia, and his lack of ties with any other country. It was emphasised that these factors are not contentious and were accepted by the Tribunal at [53], where it reproduced the statement by the applicant set out at [14] above as to his upbringing and substantial family connections in Australia and his lack of any family, friends or other connection with New Zealand.

41    The applicant submitted that this Court should apply the views expressed by the United Nations Human Rights Committee (UNHRC) in “Nystrom v Australia” (Views: Communication No 1557/2007, 102nd sess, UN Doc CCPR/C/102/D/1557/2007). In that case, the Committee considered a claim by Mr Nystrom that his right under art 12(4) to remain in Australia as his “own country” had been violated by deportation to Sweden following the cancellation of his visa on mandatory character grounds. Although born in Sweden and a national of that country, Mr Nystrom had lived in Australia since he was 25 days old and was under the misapprehension that he was an Australian citizen.

42    As may be seen, Mr Nystrom’s case engaged similar questions of the meaning of art 12(4). Relevantly, the Committee considered that the scope of the expression “his own country” in art 12(4) was broader than and not limited to Mr Nystrom’s country of nationality. It made the following observations at [7.4]:

… the Committee recalls its General Comment No 27 on freedom of movement where it has considered that the scope of “his own country” is broader than the concept “country of his nationality”. It is not limited to nationality in a formal sense, that is nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien. In this regard, it finds that there are factors other than nationality which may establish close and enduring connections between a person and a country, connections which may be stronger than those of nationality. The words “his own country” invite consideration of such matters as long standing residence, close personal and family ties and intentions to remain, as well as to the absence of such ties elsewhere.

43    In light of that reasoning, the Committee was satisfied that Australia was Mr Nystrom’s “own country” for the purposes of art 12(4). The Committee took into account the strong ties connecting Mr Nystrom to Australia, the presence of his family in Australia, the language he spoke, the duration of his stay in the country and his lack of any ties with Sweden other than nationality. It observed that Mr Nystrom’s ties to Australia were so strong that he was considered to be an “absorbed member of the Australian community” by the Full Court, and that Mr Nystrom had never acquired Australian nationality because he thought he was an Australian citizen.

44    There are obvious similarities between the present case and those confronting the Committee in Nystrom. The applicant is a longstanding resident of Australia, with strong and enduring ties to this country, and a lack of any ties with New Zealand other than nationality. The Minister did not appear to resist this submission. In the circumstances, I am willing to accept, for the purposes of determining this application, that Australia may be regarded as the applicant’s “own country” within the meaning of art 12(4) of the ICCPR.

Does non-revocation of the applicant’s visa cancellation arbitrarily interfere with his rights under art 12(4)?

45    Counsel for the applicant submitted that removal of the applicant from Australia by operation of the relevant procedures under the Migration Act would constitute “arbitrary” interference with his right to enter his own country, Australia. It did not appear to be contentious that cancellation of the applicant’s visa would interfere with this right, as Australian immigration regulations would make the applicant’s return following deportation practically impossible, certainly in the short or medium term. Rather, the critical question was whether such a result was “arbitrary” in the sense of art 12(4) of the ICCPR.

46    Counsel for the applicant submitted that the concept of “arbitrary” in art 12(4) should be understood as “unreasonable in the sense of not being proportionate to a legitimate aim”, citing Director of Public Prosecutions v Kaba [2014] VSC 52; 44 VR 526. In Kaba, Bell J considered the effect of s 13(a) of the Charter of Human Rights and Responsibilities Act 2006 (Vic), which provides for privacy rights that generally reflect art 17(1) of the ICCPR. At [154], Bell J restated from PJB v Melbourne Health (Patrick’s Case) [2011] VSC 327; 39 VR 373 his Honour’s prior observation that the human right in s 13(a) of the Charter not to have one’s privacy, family, home or correspondence “arbitrarily” interfered with:

… extends to interferences which, in the particular circumstances applying to the individual, are capricious, unpredictable or unjust and also to interferences which, in those circumstances, are unreasonable in the sense of not being proportionate to a legitimate aim sought. Interference can be arbitrary although it is lawful. [emphasis added]

That formulation was arrived at by his Honour with regard to interpretations of “arbitrary” adopted by the UNHRC, the commentary of Professor Manfred Nowak, and the views of Black CJ, Sundberg and Weinberg JJ in Minister for Immigration and Multicultural Affairs v Al Masri [2003] FCAFC 70; 126 FCR 54 at [152] that “arbitrary” in art 9(1) of the ICCPR means “unproportional or unjust”.

47    The applicant’s argument, adopting the language of Kaba, was that the practical impossibility of the applicant ever returning to Australia, his visa having been cancelled, is disproportionate to the legitimate aim of preventing the commission of further crimes in Australia. On this point, the applicant’s argument echoed the views of the UNHRC in “Warsame v Canada” (Views: Communication No. 1959/2010, 102nd sess, UN Doc CCPR/C/102/1959/2010), which concerned the complaint of a long-time resident of Canada who was facing deportation by reason of the cancellation of his visa due to his criminal record. As in Nystrom, the Committee was prepared to accept that Canada was Mr Warsame’s “own country” within the meaning of art 12(4), having regard to factors aside from nationality. The Committee then considered that Mr Warsame’s deportation:

… would render his return to Canada de facto impossible due to Canadian immigration regulations. The Committee therefore considers that the author’s deportation to Somalia impeding his return to his own country would be disproportionate to the legitimate aim of preventing the commission of further crimes and therefore arbitrary. …

48    Counsel for the applicant emphasised that, as considered in Kaba at [154], infringement of a human right may be “arbitrary” notwithstanding that it is lawful. Reference was also made to the Committee’s comment in Warsame that: “even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances”. Counsel for the applicant suggested that Edmonds J in Amohanga v Minister for Immigration and Citizenship [2013] FCA 31; 209 FCR 487 had misunderstood the ICCPR concept of arbitrariness in concluding at [40] that deportation of the applicant could not be described as arbitrary, by reason that the process of visa cancellation by the Minister and review by the Tribunal had involved a “determination according to law”, “in which a number of factors, including the effect on the applicant’s family and personal circumstances were considered”.

49    It is neither necessary, nor particularly useful, to reach a concluded view on whether non-revocation of the applicant’s visa necessarily involved arbitrary interference with his rights under art 12(4). That is because, even if the applicant’s assertion of “arbitrary” interference is accepted, it cannot be shown that the Tribunal erred as to the exercise of its jurisdiction in its review. That may be seen from the consideration of the applicant’s grounds that follows.

Existing ground 4

50    By ground 4, the applicant asserted that the Tribunal made a jurisdictional error by failing to take into account Australia’s obligations contained in art 12(4) of the ICCPR. Those obligations were said to be a mandatory relevant consideration by reason of cl 14 of Direction 65.

51    Clause 14 of Direction 65 states as follows:

14.    Other considerations – revocation requests

(1)    In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

a)    International non-refoulement obligations;

b)    Strength, nature and duration of ties;

c)    Impact on Australian business interests;

d)    Impact on victims;

e)    Extent of impediments if removed.

52    The applicant accepted that the matter of art 12(4) was not expressly included in the list of considerations dictated by cl 14 of Direction 65. It was submitted that the Direction may nonetheless make consideration of art 12(4) mandatory by implication, citing Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 per Mason J at 39-42. In particular, it was argued that “international non-refoulement obligations” should be read as encompassing consideration of the applicant’s rights under art 12(4). The basis for that submission was that the underlying concept of “international non-refoulement obligations” is that the decision-maker must consider an international legal obligation regarding movement across international borders, where the obligation could be breached by a decision resulting in the removal of a person from Australia.

53    The answer to the applicant’s contentions on this ground may be found within the terms of Direction 65 itself. The subclauses to cl 14 of Direction 65 provide further information to decision-makers on the nature of each of the considerations to be taken into account. Relevantly, cl 14.1(1) states that “A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm …”. So understood, the consideration mandated by cl 14 of Direction 65 can in no way be seen to encompass, whether expressly or by any available implication, an obligation to consider a person’s right to enter Australia without arbitrary interference. Rather, it can only meaningfully be understood to refer to the distinct obligation not to return a person to a place or country where they may face harm of a particular kind. Unlike art 12(4), that obligation is a mandatory relevant consideration because it has been given force in domestic law by way of legislation under the Migration Act, such as by way of complementary protection. The mere fact that both art 12(4) and non-refoulement obligations concern movement across international borders is no basis for interposing art 12(4) as any part of the content of non-refoulement obligations.

54    Accordingly, it cannot be accepted that Direction 65 requires consideration of Australia’s international obligations under art 12(4), and there was no error by the Tribunal in a failure to consider that matter. It follows that ground 4 must fail.

Proposed grounds 5 and 6

55    By grounds 5 and 6, it was asserted that the Tribunal made a jurisdictional error by purporting to exercise s 501CA(4) of the Migration Act in relation to the applicant when the applicant was not a “person” within the meaning of the provision. With reference to the principle of legality, it was submitted that a construction of s 501CA(4) which excludes the applicant from the scope of the term “person” is one that accords with the legislature’s intention not to interfere with the applicant’s asserted right to enter and reside in Australia.

56    The principle of legality requires it to be presumed that, in the absence of unmistakeable and unambiguous language in the text of the legislation, Parliament has not intended to interfere with fundamental rights, immunities and freedoms: see Lacey v Attorney-General for the State of Queensland [2011] HCA 10; 242 CLR 573 at [43]-[44], citing, in particular, Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78] and quoting Zheng v Cai [2009] HCA 52; 239 CLR 446 at [28]. Where constructional choices are open to this Court, legislation is to be construed to avoid or minimise its encroachment upon those rights, immunities or freedoms, adopting the language of French CJ in Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 at [43], the Chief Justice citing a long line of authority on this topic.

57    Two pathways were relied upon for the application of the principle of legality in the present case:

(1)    that this Court should expand the common law to recognise a fundamental right of the applicant to enter and remain in Australia as “his own country” (proposed ground 5).

(2)    that the right enshrined in art 12(4) should be treated as a “fundamental right, immunity or freedom” for the purposes of the principle of legality (proposed ground 6).

58    The correctness of the applicant’s argument as to the first point cannot be accepted. The Migration Act determines comprehensively the rights of non-citizens such as the applicant to enter and remain in Australia: see Ruddock v Vadarlis [2001] FCA 1329; 110 FCR 491 (the MV Tampa case), at [199]. There is no room for any common law to be left to operate, at least in the absence of some constitutional argument, a course which has expressly been disavowed. Moreover, as was accepted by the applicant’s counsel, existing and long-standing authority stretching back before federation does not support the existence of any entrenched right accruing to a non-citizen such as the applicant to enter or remain in Australia. That right extends only to citizens. It was such a right held by what is now described as a citizen that the High Court said was not able to be taken away, to the extent that it is able to be taken away at all, without legislation expressed with irresistible clarity in Potter v Minahan (1908) 7 CLR 277 at 289, 294, 299 and, especially, 305.6; see also 308. See also Air Caledonie International v Commonwealth (1988) 165 CLR 462 at 469, which referred, albeit in a somewhat different context, to “[t]he right of the Australian citizen to enter Australia”. The lineage of rights of a kind now encompassed within the concept of citizenship in Australia was discussed by the House of Lords in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] UKHL 61; [2009] AC 453 at [44], [70], [88], [123], [151]. Those passages make it clear that it is citizenship-type rights that are entrenched, not the rights of aliens or, in the language of the Migration Act, the rights of non-citizens. Such rights do not extend to aliens/non-citizens, as was decided by the Privy Council in an appeal from the Supreme Court of Victoria in Musgrove v Chun Teeong Toy [1891] AC 272 at 282.

59    Of course, a valid statute may confer on a non-citizen a right to enter and remain in Australia, as does the Migration Act. In this regard, counsel for the applicant suggested that it would be discriminatory for the common law to confer on its citizens a fundamental right to enter and remain in Australia, but withhold the same treatment from a person who has lived here almost all of his life. There is no support to be found for this submission in the Migration Act, or in any relevant authority to which I have been directed. Any residual recognition by the common law of a citizen’s right to enter and reside in Australia is a consequence of their legal status. It may be seen as part of the legal relationship between a citizen and their country of citizenship. So understood, there are obvious legal differences between a citizen and a non-citizen that justify different treatment by the common law without raising any question of “discrimination”.

60    The applicant relied upon art 12(4) as a source of a right to remain in Australia. However that cannot be sustained in light of the well-established need for any such right to be reflected in legislation before it is to become a part of the domestic law of Australia: see, for example, the MV Tampa case at [203].

61    Leave to rely on proposed ground 5 should therefore be refused because it has no reasonable prospects of success.

62    There was, at first blush, greater force to the applicant’s argument under ground 6 for the application of the principle of legality, because in Kaba, discussed above at [46] to [48], Bell J considered it appropriate to treat the rights and freedoms recognised in the ICCPR as “fundamental rights and freedoms” for the purposes of the principle of legality and thereby the interpretation of s 59(1)(a) of the Road Safety Act 1986 (Vic). His Honour’s observations at [181] were as follows:

… treating the rights and freedoms in the ICCPR as fundamental rights and freedoms for the purposes of the principle of legality would, I think, be a natural and appropriate step to take. It would reflect the close relationship between common law rights and freedoms and those recognised in the ICCPR. It would be consistent with the widespread acceptance of the ICCPR in the Australian legal system. It would fit well into the constitutional relationship between parliament and the judiciary. It would not represent backdoor importation of an unincorporated convention into Australian law. It would bring a greater measure of certainty to the identification of the rights covered by the principle without limiting those already covered or inhibiting the capacity of the common law to develop in this regard. In relation to the issue of limitation of rights, it would fit with the way in which, under the existing principle, legislation is read down (where appropriate) so as to be compatible with human rights.

63    Section 59(1)(a) of the Road Safety Act relevantly provided that a driver of a motor vehicle on a highway had a duty to stop the motor vehicle and produce his or her driver licence and state his or her name and address if requested or signalled to do so by a police officer. At trial, a magistrate had ruled that although s 59(1) imposed a duty on drivers, it did not confer a correlative power upon police. The magistrate accepted the submission of the defence that the legislation did not disclose a clear intention to interfere with the basic rights of drivers. On review, that conclusion was found by Bell J to give rise to an error of law on the face of the record. As noted above, his Honour accepted that the legislation was not to be construed as abrogating the rights enshrined in s 13(a) of the Charter or art 17 of the ICCPR unless an intention to do so was clearly manifested. However, at [239], his Honour concluded that the history of the Road Safety Act and its current provisions revealed that the Victorian Parliament unmistakeably intended that s 59(1)(a) was to confer, by necessary implication, both a duty on drivers and a power to stop on police. To that extent, the rights in question were found to have been displaced.

64    The applicant’s reliance on the reasoning in Kaba cannot take him very far. Even assuming for present purposes that the principle of legality is capable of being engaged by analogous reasoning to the present situation, it simply cannot be accepted that there is any constructional choice open to this Court to conclude that the applicant is not a “person” within the meaning s 501CA(4). Parliament’s intention by reference to “person” in s 501CA(4) of the Migration Act is manifestly clear as being without any implied limitation of the kind suggested. That is, putting to one side the other terms of s 501CA, the word “person” of itself admits of no ambiguity in encompassing all natural persons, including the applicant. It may be further observed that the visa cancellation and revocation process in the Migration Act is clearly intended to apply to non-citizens such as the applicant who may have permanent or long term visas, and may thereby have longstanding ties to Australia.

65    For these reasons, the construction advanced by the applicant must be rejected. There was no error by the Tribunal in exercising s 501CA(4) in relation to the applicant. Once it was carefully examined, there was no substance to this proposed ground. It follows that leave to rely upon proposed ground 6 should be refused.

The existing ground renumbered as ground 7

66    By the existing ground renumbered as ground 7, it was asserted that the Tribunal erred by making a legally unreasonable decision to affirm the cancellation of the applicant’s visa in circumstances where doing so violated his human rights guaranteed under the ICCPR or at common law.

67    The Tribunal’s decision, made in discharge of its function to review the decision of the delegate, was one with an evident and intelligible justification. No point has been made to suggest otherwise. The applicant has not demonstrated that there is any merit in the assertion that a decision that is inconsistent with the ICCPR, an international treaty that is not incorporated in Australian domestic law, without more, gives rise to legal unreasonableness.

68    It follows that ground 7 must fail.

Conclusion

69    The further amended application must be dismissed with costs.

Associate:

Dated:    16 March 2018