FEDERAL COURT OF AUSTRALIA

Azar v Minister for Immigration and Border Protection [2018] FCA 1175

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    Mr Azar seeks judicial review of a decision of the respondent, the Minister for Immigration and Border Protection, by his Assistant Minister (the Minister). By that decision, the Minister refused to revoke under subs 501CA(4) of the Migration Act 1958 (Cth) (the Act), the automatic cancellation under subs 501(3A) of Mr Azar’s Class AO Subclass 832 Close Ties – Special Eligibility visa (the visa).

2    The application turns upon the proper construction of subss 501(3A) and 501CA(4) of the Act. Subsection 501(3A) provides that:

The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

3    Subsection 501CA(4) in turn provides that:

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.

4    Mr Azar contends that the Minister fell into jurisdictional error when determining whether to revoke the cancellation decision in proceeding on the basis that he was a “person” within the meaning of subs 501CA(4). This contention is based upon the argument that subs 501(3A) and therefore subs 501CA(4) must be read in accordance with the principle of legality to include relevantly the right guaranteed by Art 12(4) of the International Covenant on Civil and Political Rights, adopted 16 December 1966, 999 UNTS 171; [1980] ATS 23 (entry into force for Australia 13 November 1980) (ICCPR), or an equivalent (new) right at common law developed in line with Art 12(4). Article 12(4) of the ICCPR provides:

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

5    In the alternative, Mr Azar contends that the conduct of the Minister in refusing to revoke the cancellation decision was unreasonable in the sense that it was irrational due to the violation of those rights.

6    For the reasons set out below, the applicant’s submissions should be rejected and the application dismissed.

2.    A PRELIMINARY ISSUE RAISED BY THE JURISDICTIONAL CONSTRAINTS ON THE FEDERAL AND FEDERAL CIRCUIT COURTS

7    Leaving aside the original jurisdiction of the High Court under s 75(v) of the Constitution, it was not in issue that, by virtue of subss 476(2)(c) and 476A(1)(c) of the Act, the validity of the revocation decision can be challenged only in this Court. This is because that decision was made personally by the Minister under subs 501CA(4). Nor was it in issue that the cancellation decision under subs 501(3A) could be challenged only in the Federal Circuit Court (the FCC) because it was made by a delegate of the Minister, unless proceedings instituted in the FCC challenging that decision were transferred to this Court under s 39 of the Federal Circuit Court of Australia Act 1999 (Cth): see subs 476(1) and subs 476A(1)(a) of the Act. As such, the parties accepted that in order for Mr Azar to challenge the cancellation and revocation decisions simultaneously, it would have been necessary for him to have commenced proceedings in the FCC challenging the cancellation decision and for orders then to be made transferring those proceedings to this Court so that they could be heard and determined together with this proceeding.

8    The applicant elected not to follow this pathway at least at this stage of the proceeding. As earlier explained, the applicant presently challenges only the decision not to revoke the cancellation decision. As such, the Minister raised the question of whether the Court should withhold relief in the exercise of discretion on the ground that the relief sought lacked utility, given that there was no challenge to the cancellation decision itself. In this regard, I note that the Minister expressly eschewed any argument that this Court lacked jurisdiction on the ground that the proceedings in this Court were moot.

9    The utility of the grant of relief was, however, raised as an issue only at the hearing of the application, with the Minister’s counsel explaining that the “real difficulty in terms of utility … has become apparent as this hearing has gone on.” Given that the issue was raised so late and that the Minister accepted that it could be remedied by the institution and transfer of proceedings in the FCC, the parties agreed that the best way to proceed was, in effect, by a “split trial” whereby I would rule first upon the question of construction. However, I would not rule at this stage upon the question of whether relief should issue in the exercise of discretion, so as to leave open the option to Mr Azar to seek to meet the Minister’s objection by the pathway indicated, in the event that Mr Azar’s arguments as to the proper construction of subs 501CA(4) were successful. I should also note that in agreeing to this course, it appears to have been accepted that the applicant would have to seek an extension of time within which to commence proceedings in the FCC, and the applicant did not concede that the grant of relief in the present proceedings would be without utility even if relief was sought only with respect to the revocation decision.

10    In the circumstances, however, I have not accepted Mr Azar’s construction of subs 501CA(4). As such, the question of whether or not to make the orders sought by Mr Azar in the exercise of discretion does not arise.

3.    BACKGROUND

11    Mr Azar arrived in Australia at age one in 1985 and has lived here since that time.

12    Mr Azar’s criminal offending commenced when he was a minor and includes convictions for driving, trespass, shoplifting, larceny, common assault, and armed robbery in company. In particular, in 2006 Mr Azar was convicted in the District Court of New South Wales of “assault with intent to rob armed offensive weapon wound/grievous bodily harm” and sentenced to six years and eight months imprisonment with a non-parole period of five years.

13    On 2 July 2012 Mr Azar was notified that his offending had put him at risk of having his visa cancelled on character grounds. On 24 September 2012 and following representations from Mr Azar, a decision was made that his visa should not be cancelled on character grounds. However, the notice from the Department advising of that decision also formally warned Mr Azar that visa cancellation may be reconsidered if he committed further offences or otherwise breached the character test.

14    On 13 May 2015, Mr Azar was convicted by the Local Court of New South Wales (Local Court) of shoplifting and possessing goods in personal custody suspected of being stolen, and was sentenced to seven and three months imprisonment respectively for each offence, to be served concurrently. On 24 June 2015, Mr Azar was also convicted by the Local Court of common assault for an offence committed on 20 January 2015 and was sentenced to nine months imprisonment.

15    On 16 September 2015, a delegate of the Minister cancelled Mr Azar’s visa under subs 501(3A) of the Act (quoted above at [2]). That section provides for the automatic cancellation of a visa in certain circumstances where a person does not pass the character test as defined in subs 501(6), including where the person has a “substantial criminal record” (subs 501(6)(a)), and the person is serving a sentence of imprisonment for an offence under Australian law. It was accepted that Mr Azar had a substantial criminal record as defined in subs 501(7)(c) of the Act because he had been sentenced to a term of imprisonment of 12 months or more, and he was serving a sentence of imprisonment at the time of cancellation.

16    The delegate gave notice of the decision to cancel the visa to Mr Azar in accordance with subs 501CA(3), and invited him to make representations as to whether that decision should be revoked.

17    Mr Azar made representations and submitted supporting documentation on 21 September 2015 seeking revocation of the cancellation decision. The reasons given by Mr Azar and his immediate family as to why the cancellation decision should be revoked include the following:

(1)    it is in the best interests of Mr Azar’s child who was (then) two years of age, as well as his brother who is also a minor, that they can maintain a close relationship with him;

(2)    Mr Azar fears for his life and personal safety if returned to Fiji;

(3)    Mr Azar has spent nearly all of his life in Australia, having arrived when he was aged one;

(4)    Mr Azar has no family or connections to Fiji, and would find it difficult to live there;

(5)    he has strong ties to Australia through his family including his de facto wife who he married in a traditional indigenous ceremony, and his daughter, parents, younger brother, and extended family;

(6)    his life has changed because of his loving relationship with his wife and his daughter, and he strives to be a good husband and father;

(7)    his wife is an indigenous Australian and he is accepted by the indigenous community;

(8)    he takes responsibility for his crimes, and is remorseful and committed to not reoffending;

(9)    he has positive prospects of rehabilitation with the support of his family and through his engagement in a program to address his drug abuse issues; and

(10)    he undertook rehabilitation and vocational courses while he was in prison.

18    The Minister accepted that Mr Azar had made representations as required by subs 501CA(4)(a) of the Act. Having found that Mr Azar did not pass the character test and therefore did not meet the criteria for revocation under subs 501CA(4)(b)(i) of the Act, the Minister then considered whether in the exercise of discretion, there was another reason why the cancellation decision should be revoked. In considering the latter question, the Minister took into account as a primary consideration, that it was in the best interests of Mr Azar’s child and his younger brother that he remain in Australia. Among other things, the Minister also took into account the strength, nature and duration of Mr Azar’s ties to Australia, the impediments which he would face if returned to Fiji, and the fears articulated by Mr Azar. However, on 3 May 2017 the Minister decided nonetheless not to revoke the cancellation of Mr Azar’s visa under subs 501CA(4), concluding that:

101. In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr AZAR represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his child and brother as a primary consideration, and any other considerations as described above. These include his lengthy residence, strong familial ties and the hardship Mr AZAR and his family will endure in the event the original decision is not revoked

19    Finally, I note that in his reasons the Minister referred to Fiji as Mr Azar’s “home country” (at [34]), despite the depth of Mr Azar’s connections with Australia and the Minister’s finding that he had no knowledge or familiarity with the culture of Fiji, or memory of having lived there. However there is nothing to suggest that the Minister was considering whether Fiji or Australia was Mr Azar’s own country for the purposes of Art 12(4) of the ICCPR. Nor did the parties suggest otherwise.

4.    SHOULD SUBS 501(3A) BE READ DOWN TO EXCLUDE APPLICANTS FOR WHOM AUSTRALIA IS THEIR “OWN COUNTRY” (GROUNDS 1 AND 2)?

4.1    The issues

20    Grounds 1 and 2 of the amended application allege that:

1.    The Assistant Minister made a jurisdictional error by purporting to refuse 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 International Covenant of Civil and Political Rights (ICCPR).

2.    The Assistant Minister made a jurisdictional error by purporting to refuse to exercise s 501CA(4) of the Act in relation to the Applicant when the applicant was nor [sic] a “person” within the meaning of the provision as he attracted the fundamental common law right of the subject of the Crown to remain in Australia as amplified to include the Applicant by reference to Art 12(4) of the ICCPR.

(particulars omitted)

21    Proposed grounds to the same effect were also considered in Steve v Minister for Immigration and Border Protection [2018] FCA 311 (Steve) which was delivered after judgment was reserved in this case. In Steve, Bromwich J refused to grant leave to amend an application for judicial review to include the proposed grounds in question. While accepting at [44] that Australia was the applicant’s “own country” for the purposes of Art 12(4) of the ICCPR, Bromwich J refused leave on the basis that ground 5 (which equates to Ground 2 in the present case) had no reasonable prospects of success and ground 6 (which equates to Ground 1 in the present case) was without substance (Steve at [61] and [65] respectively). In submissions filed following the decision in Steve, Mr Azar argues that the decision in Steve is plainly wrong and therefore should not be followed. Mr Azar’s submissions on this point essentially repeated his earlier arguments in support of Grounds 1 and 2 of the application. The Minister however, contends that the decision is correct.

22    Finally, as earlier mentioned, only the non-revocation decision under subs 501CA(4) is challenged in this proceeding. Nonetheless, both parties proceeded on the basis that the word “person” in subss 501CA(4) and 501(3A) must bear the same meaning. In my view, that is plainly correct as subs 501CA(4) deals with the capacity of the “person” whose visa has been cancelled under subs 501(3A) to seek revocation of that decision. So understood, it is also apparent that subs 501(3A) is the leading provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky) at [70] (McHugh, Gummow, Kirby and Hayne JJ). The question of how subs 501CA(4), as the subordinate provision, is to be construed therefore depends upon how subs 501(3A) is construed. Again this was not contentious and explains why the argument essentially focused upon subs 501(3) despite the applicant’s challenge being to the decision made under subs 501CA(4).

4.2    The applicant’s submissions on Grounds 1 and 2

23    The steps in Mr Azar’s argument may be summarised as follows.

24    First, Mr Azar submitted that his ties to the Australian community are so strong that they establish that Australia is his “own country” within the meaning of Art 12(4) of the ICCPR, notwithstanding that he is not a citizen. In support of this submission, Mr Azar relied upon the interpretation of Art 14(4) adopted by the United Nations Human Rights Committee (UNHRC) in Nystrom v Australia, Communication No. 1557/2007, U.N. Doc. CCPR/C/102/D/1557/2007 (2011) (Nystrom) at [7.4], namely, that the concept of a person’s “own country”:

… 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…. 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.

25    Secondly and again with some force, Mr Azar submitted that the question of whether expulsion was arbitrary for the purposes of Art 12(4) did not turn merely upon whether the process of cancellation was procedurally fair, but involved a consideration of the substantive grounds for the expulsion. In so contending, he submitted that the decision in Amohanga v Minister for Immigration and Citizenship [2013] FCA 31; (2013) 209 FCR 487 (Amohanga) at [40] (Edmonds J) to the contrary was plainly wrong, pointing out that his Honour does not appear to have been taken to relevant international materials, such as Nystrom at [7.6] and Jama Warsame v. Canada, Communication No. 1959/2010, U.N. Doc. CCPR/C/102/D/1959/2010 (2011) (Warsame). For example, in Warsame at [8.8], the UNHRC considered that the concept of arbitrariness in the ICCPR “is not to be confined to procedural arbitrariness”: see also by analogy PJB v Melbourne Health (Patrick’s Case) [2011] VSC 327 at [85] (in relation to Art 13(a)) of the ICCPR) and Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70 at [152] (in relation to Art 9(1) of the ICCPR).

26    Thirdly, in Mr Azar’s submission, the existence of a substantial criminal record does not of itself necessarily mean that a person can be deprived of the right to enter her or his “own country” without infringing Art 12(4). The question, in his submission, is whether expulsion is a proportionate response to such conduct. Thus, while not excluding the possibility that some crimes are so heinous that the perpetrator is not protected by Art 12(4), Mr Azar submitted that ordinarily the expulsion of a person to whom Art 12(4) applies is arbitrary even when undertaken in response to serious, violent, or repeated criminal conduct by the person. For example, as the UNHRC remarked in Nystrom at [7.6]:

… the Committee recalls its General Comment No 27 on freedom of movement where it has stated 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. The Committee considers that there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable. A State party must not, by stripping a party of nationality or by expelling an individual to a third country arbitrarily prevent this person from returning to his or her own country.

(See also the decision of the UNHRC in Warsame at [8.6]).

27    Fourthly, Mr Azar contended that the rights and freedoms in the ICCPR should be treated as fundamental rights and freedoms for the purposes of the principle of legality, as Bell J considered in Director of Public Prosecutions v Kaba [2014] VSC 52; (2014) 44 VR 526 at [181]. Counsel for Mr Azar accepted in oral argument that he put his case on this point in terms that, absent Art 12(4) of the ICCPR, there would be no fundamental right, freedom or immunity interfered with (i.e there would be no “stand-alone” common law right). As such, the applicant arguably seeks to expand the principle of legality requiring that legislation be construed on the basis that, absent clear words or necessary intendment, the Parliament does not intend to abrogate or derogate from (fundamental) common law rights, principles, freedoms, and immunities, so as to embrace (fundamental) human rights which have no common law equivalent: see e.g. Potter v Minahan (1908) 7 CLR 277 (Potter v Minahan) at 304 (O’Connor J); Coco v The Queen (1994) 179 CLR 427 at 437 (Mason CJ, Brennan, Gaudron and McHugh JJ); Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [58] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ); Momcilovic v R [2011] HCA 34; (2011) 245 CLR 1 (Momcilovic) at [51] (French CJ), [522] (Crennan and Kiefel JJ); but semble Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196 (Lee) at [313] (Gageler and Keane JJ).

28    In the alternative, as alleged in Ground 2, Mr Azar submitted that the common law right of an Australian citizen to exit, enter and reside in Australia can legitimately be extended to an alien in his “own country” within the meaning of Art 12(4) of the ICCPR. This submission relied upon the reasoning of Brennan J (Mason CJ and McHugh JJ agreeing) in Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42 that “…international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.” In the applicant’s submission:

…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 and, in the eyes of international law, has Australia as his or her “own country”.

29    In the fifth place, Mr Azar contended that the general reference to a “person” in subs 501(3A) of the Act should be read down in accordance with the principle of legality so as to be limited to persons holding a visa for whom Australia was not their “own country” for the purposes of Art 12(4) of the ICCPR. In the applicant’s submission, there were no words in subs 501(3A) at the requisite level of clarity to demonstrate that Parliament intended to derogate from the right of a person under Art 12(4) of the ICCPR, or the fundamental common law right as amplified by reference to Art 12(4), not to be arbitrarily deprived of the right to enter or to remain in her or his “own country”.

30    Construed in this way, Mr Azar submitted that subs 501(3A) of the Act did not require or permit the Minister to cancel his visa; rather, in his submission, the provision simply did not apply to a person in his situation. It followed, therefore, in his submission that there was no scope for the Minister to decide whether or not to revoke the cancellation under subs 501CA(4) of the Act and he fell into jurisdictional error in so doing.

4.3    Applicability of Art 12(4), ICCPR, to Mr Azar’s circumstances: steps 1 & 2 in the applicant’s submissions

31    Turning to the first step in Mr Azar’s argument in relation to Ground 1, I accept that Australia may be regarded as his “own country” within the meaning of Art 12(4) of the ICCPR given the Minister’s findings as to the duration and strength of Mr Azar’s ties with Australia: see also by analogy Steve at [44] (Bromwich J). Nor did the Minister contend to the contrary. However, the question of whether the cancellation and therefore the decision to refuse to revoke the cancellation is “arbitrary” for the purposes of Art 12(4), being the second step in Mr Azar’s submissions, is more complex. I do not consider that it is necessary or helpful to decide this issue in this case because, even assuming that the decision was arbitrary in the relevant sense, the application must fail in any event: see also Steve at [49] (Bromwich J).

4.4    Taking the applicant’s case at its highest, is the implied limitation on subss 501(3A) and 501CA(4) open as a matter of construction?

32    For reasons I now address, Grounds 1 and 2 must be dismissed. Even accepting the applicant’s arguments as to the width of the principle of legality and construction of Art 12(4), there is no scope to read subs 501(3A) down so as to “carve out” from the duty to cancel a visa, “person[s]” holding a visa for whom Australia is their “own country” where (or on the assumption that) cancellation would thereby be arbitrary. As the authorities referred to by the applicant make clear, the principle of legality cannot “shield” a right, freedom, immunity or principle “from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature”: Lee at [313] (Gageler and Keane JJ). To put it another way, the presumption may operate only where such constructional choices are open, as French CJ explained in Momcilovic at [43]. It follows that the applicant’s construction of subs 501CA(4) must also fail.

33    First, while the word “person” in subs 501(3A) is not defined, it takes its meaning from the context in which it appears: Project Blue Sky at [69] (McHugh, Gummow, Kirby and Hayne JJ). Specifically, it is a provision concerned with the cancellation of a visa granted to the person who, under the scheme of the Act, can only be a non-citizen. As such, subs 501(3A) forms part of the central mechanism for implementing the object of the Act under subs 4(1), namely, “… to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.” As subs 4(2) further provides:

To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.

(emphasis added)

34    A non-citizen is defined in subs 5(1) simply to mean “a person who is not an Australian citizen.” As such, it is apparent that the Act envisages two primary categories of persons only: namely, Australian citizens, on the one hand, and non-citizens, on the other hand. For the latter category, subs 4(2) makes it plain that a visa granted under the Act can be the “only” source of a right to enter or remain in Australia. In other words, the Act does not envisage that a non-citizen may have a right to enter or remain in Australia otherwise than by reason of the grant of a visa under the Act (see e.g. Plaintiff B9/2014 v Minister for Immigration and Border Protection [2014] FCAFC 178; (2014) 227 FCR 494 at [62] (the Court)). The corollary of this, of course, is that the entry into and presence in Australia of Australian citizens is not regulated by the system of visas erected by the Act. Citizens require no permission to enter, exit or remain in their country in the form of a visa: Potter v Minahan at 289 (Griffiths CJ), 294, 299 (Barton J), 305 (O’Connor J), and 308-309 (Isaacs J); Air Caledonie International v Commonwealth (1988) 165 CLR 462 at 470 (the Court); see also Regina (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] 1 AC 453 at [44], [70], [87]-[89], [123] and [154].

35    Secondly and consistently with this, the Act contemplates that only non-citizens will apply for and be granted a visa. Thus, s 29 provides that, subject to the Act, the Minister may grant a non-citizen “permission, to be known as a visa” to enter and/or remain in Australia. Provision is then made for different kinds and classes of visas (ss 30-38B) to which conditions may attach (see e.g. s 41 of the Act). A non-citizen who wants a visa must apply for a visa of a particular class (s 45). Section 65 in turn provides for two possible outcomes only in the discharge by the Minister of the obligation under s 47 to consider a valid application for a visa, namely: that the Minister will grant the visa if satisfied that the criteria for the visa are met; or, if not so satisfied, that the Minister will refuse to grant the visa.

36    Thirdly, the Act creates two sub-categories of non-citizens, namely, “lawful non-citizens” being simply “[a] non-citizen in the migration zone who holds a visa that is in effect”, on the one hand, and “unlawful non-citizens” being a non-citizen in the migration zone who is not a “lawful non-citizen”, on the other hand (ss 13 and 14 of the Act respectively). The “migration zone” includes an Australian state or territory (subs 5(1)). The consequence of being an unlawful non-citizen is that the person must be detained under subss 189(1) and 196(1) of the Act until she or he is removed or deported from Australia or is granted a visa. This structure was described by Hayne J in Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1 (Plaintiff M47/2012) at [176] as “binary … in that its central provisions posit a choice between two outcomes”, depending upon whether a non-citizen is a lawful non-citizen or an unlawful non-citizen. Thus, as his Honour further explained:

178. The Act provides no middle ground between being a lawful non-citizen (entitled to remain in Australia in accordance with any applicable visa requirements) and being an unlawful non-citizen, who may, usually must, be detained and who (assuming there is no pending consideration of a valid visa application) must be removed from Australia as soon as reasonably practicable. These consequences – remaining in Australia on the one hand and detention followed by removal from Australia on the other – follow once the central question has been answered: is the person a lawful non-citizen or an unlawful non-citizen? That question depends upon whether the Minister grants or refuses to grant a visa or, if a visa has previously been granted, whether that visa has since been cancelled.

(emphasis added)

37    Similarly, in the earlier decision in Re Woolley; ex parte applicants M276/2003 [2004] HCA 49; (2004) 225 CLR 1 (Re Woolley) the High Court unanimously rejected the submission that children who were unlawful non-citizens were impliedly exempt from the obligation to detain unlawful non-citizens under ss 189 and 196 of the Act. That submission was also based upon the principle of legality, as well as the presumption that legislation should be read consistently with international obligations to the extent to which its language permits. However, as Kirby J succinctly held in considering whether it was open to read down ss 189 and 196 of the Act so as to exclude children:

196. … Having regard to the language of the Act, there is no foothold for a contention differentiating between adults and children in the application of the policy of mandatory detention expressed in the Act. The definition of "non-citizen" in the Act is simply "a person who is not an Australian citizen". An "unlawful" non-citizen is a non-citizen who does not hold a valid visa. A "detainee" is a "person detained". A child is necessarily a "person". If, as in the applicants’ case, the children are not Australian citizens, they are “non-citizens”, as defined by the Act. Until they received their visas, they were "unlawful" non-citizens. And until that time, in accordance with s 189(1) of the Act, if in the Australian "migration zone" (as they were) children such as the applicants were required to be detained under the Act by specified officers…

38    Similarly, Gleeson CJ, after finding (at [7]-[8]) that there was no basis in the text for reading the provisions as limited to adults, held that:

10. Just as it is impossible to interpret ss 189 and 196 as applying only to persons over the age of eighteen years, so also it is impossible to read them down in some manner requiring individual assessment of particular unlawful non-citizens, so that in some cases detention would be mandatory, and in others discretionary… To do so would directly contradict the clear legislative intention.

11. If the scheme of the legislation, expressed in unambiguous language, were to be considered inconsistent with Australia's international obligations under the Convention on the Rights of the Child, that would not justify a refusal by the Court to give effect to the legislation. Of course, if the statutory language were ambiguous, and if it were possible to give it a fair interpretation consistent with those obligations, different considerations would apply. But that is not the case.

(See also Re Woolley at [46] (McHugh J), [129]-[130] (Gummow J); and Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491 (Ruddock v Vadarlis) at [199] (French J))

39    Equally, when regard is had to the text, structure and purpose of the Act, there is no scope for implying a limitation upon the breadth of the duty to cancel a visa under subs 501(3A) so as to “carve out” a sub-category of non-citizens whose ties with Australia are sufficiently close as to engage Art 12(4) of the ICCPR.  The duty under subs 501(3A) to cancel a “visa that has been granted to a person” where the criteria are met, is expressed in clear and unequivocal terms.  As explained, only a non-citizen can hold a visa under the scheme of the Act, the reference to a “person” in the section can only be to any non-citizen who holds a visa.  The applicant is a non-citizen who holds a visa.  Subsection 501(3A) therefore applied to him at the time of the cancellation decision.  This construction not only gives effect to the ordinary meaning of the provision; it accords with the object of the Act to “regulate” the entry and presence of (all) non-citizens in Australia, recognising that the power to cancel a visa is an essential corollary to the power to grant a visa.  Both aspects, in other words, are necessary to give effect to the object expressed in subs 4(1) of the Act, as indeed is the power to refuse to grant a visa.

40    It is no answer to this to say, as did the applicant, that the integrity of the system under the Act would not be affected by his construction because he accepts that all non-citizens, including those who attract Art 12(4), must still hold a visa.  The point is that the applicant’s construction would significantly restrict the extent to which visas could regulate the entry into, and presence in, Australia of a limited class of non-citizens and thereby undermine the mechanism chosen by the Parliament to advance the object of the Act in subs 4(1) with respect to those non-citizens.

41    The extent to which the applicant’s construction would undermine the scheme of the Act is even more apparent when the implications of that construction are considered.  The applicant’s argument proceeded on the assumption that, if his construction were correct, the principle of legality must equally confine other powers to cancel a visa expressed in similarly general terms, such as subs 501(2) and (3).  He also accepted that his construction may affect the capacity of the Minister to cancel a visa on the ground that the holder has breached the conditions of the visa and may mean that the Minister has a duty to grant a visa to a person to whom Art 12(4) applies. As such implications reveal, the applicant’s construction of subss 501(3A) and 501CA(4) cannot be reconciled with the comprehensive, bifurcated system established by the Act to regulate the entry into, and presence of, non-citizens in Australia.  It would imply a new set of rules which Parliament has not seen fit to enact requiring, in general, that a sub-class of non-citizens with sufficiently longstanding residence and close personal ties to Australia have a right to remain and, therefore, a right to a visa.  As such, Mr Azar’s construction would create a “middle ground” between non-citizens and citizens by converting what the Act describes as “permission” to enter and remain, into a virtually irrevocable entitlement in the case of non-citizens falling within Art 12(4).  Yet the decision in Plaintiff M47/2012 at [176] establishes that no such middle ground exists, as do the passages to which I have referred in Re Woolley (see above at [37]-[38]). 

42    In short, this is a case where, as the Minister submits, Mr Azar seeks by way of the principle of legality, that which the Act denies to him, namely: the right not to be regulated in the way that the Act provides for non-citizens. Yet, as Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ said in Australian Securities and Investments Commission v DB Management Pty Limited [2000] HCA 7; (2000) 199 CLR 321 at [43], “[i]t is of little assistance, in endeavouring to work out the meaning [of the legislative provisions], to invoke a general presumption against the very thing which the legislation sets out achieve” (quoted with approval in Lee at [314]).

43    It follows that far from regarding the decision of Bromwich J in Steve as plainly wrong, I consider that it was correctly decided: see also Cayzer v Minister for Immigration and Border Protection [2017] FCA 1189 especially at [46]-[49] (Kerr J). Specifically, in refusing leave to amend so as to allege that subs 501CA(4) should be read down by reference to Art 12(4) of the ICCPR in accordance with the principle of legality, Bromwich J in Steve held that:

64    … 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.

44    While I do not agree that the principle of legality requires an ambiguity (to the extent that the contrary is suggested), it does require that there be a construction choice and, as his Honour held, no such choice is available here. It follows that Grounds 1 and 2 of the amended application must be dismissed.

4.5    Should the common law be “developed” to recognise the right of aliens to enter and remain in Australia as their “own country” (Ground 2)?

45    In any event, I would have dismissed Ground 2 for a further reason. I do not consider that Bromwich J in Steve was plainly wrong to reject the submission that the common law should be developed to recognise that aliens, for whom Australia is their “own country”, have a right to enter or remain in Australia in common with Australian citizens. First, as his Honour held:

58. … 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…

46    For the reasons I have earlier given at [33]-[41], that is plainly correct.

47    Secondly, his Honour held that:

58. … 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.

48    I agree also with his Honour’s reasons in this passage which find further support in the authorities. First, in Pochi v MacPhee (1982) 151 CLR 101 (Pochi) the High Court relevantly held that an alien immigrant who had not been naturalised under an Act of the Parliament does not cease to be an alien because she or he has been absorbed into the Australian community. In rejecting an argument to the contrary, Gibbs CJ (with whose reasons Mason and Wilson JJ agreed) held at 111 that:

…This argument is impossible to maintain. It was well-settled at common law that naturalisation could only be achieved by Act of Parliament – even action by the Crown under the prerogative could not give an alien the status of a British subject… The common law rules as to alienage were no doubt feudal in origin, but there is nothing antiquated in the notion that a person’s nationality is not changed by length of residence or by intention permanently to remain in a country of which [she or he] is not a national. There are strong reasons why the acquisition by an alien of Australian citizenship should be marked by a formal act, and by an acknowledgement of allegiance to the sovereign of Australia. The Australian Citizenship Act validly so provides…

49    Thirdly, the status of alien necessarily entails a liability to the exercise of executive power to exclude, as the Privy Council observed in finding that aliens have no legal right to enter foreign countries: Musgrove v Chun Teeong Toy [1891] AC 272 at 282 (to which Bromwich J referred in Steve at [58]). As Brennan, Deane and Dawson JJ held in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 29 in upholding (save for one provision) the validity of a law under s 51(xix) of the Constitution for the detention of aliens pending expulsion or deportation:

While an alien who is actually within this country enjoys the protection of our law, his or her status, rights and immunities under that law differ from the status, rights and immunities of an Australian citizen in a variety of important respects. For present purposes, the important difference has already been identified. It lies in the vulnerability of the alien to exclusion or deportation. That vulnerability flows from both the common law and the provisions of the Constitution…

50    The applicant, on the other hand, has not identified any authority casting doubt upon the correctness of these principles, and indeed accepted that they represent the current law. The short answer, therefore, to this limb of the applicant’s case is that it is not open, at least in this Court, to depart from existing authority to find that aliens who are absorbed into the Australian community or have strong ties with Australia, now have a right to enter and remain in Australia at common law as “developed” by Art 12(4) of the ICCPR. It follows that Ground 2 of the amended application, which relied upon recognising this “new” common law right to attract the principle of legality, could not succeed, quite apart from the fact that the construction of subss 501(3A) and 501CA(4) for which the applicant contends is not open on the language and structure of the Act in any event.

5.    WAS THE DECISION UNDER SUBS 501CA(4) LEGALLY UNREASONABLE (GROUND 3)?

51    Finally, by Ground 3 of the amended application, Mr Azar contends that:

3.    The Minister’s conduct under s 501CA(4) of the Act was legally unreasonable (SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 at [10], [59]) with the unreasonableness generated by inconsistency with Art 12(4) of the ICCPR (Premalal v Minister for Immigration (1993) 41 FCR 117 at 138; R v Ministry of Defence; Ex parte Smith [1996] QB 517).

52    In essence, Mr Azar submits that the decision not to revoke the cancellation is legally unreasonable because it was made either in violation of “the fundamental common law right as amplified by Art 12(4) of ICCPR” or simply in violation of Art 12(4) itself. I note that a similar submission was rejected in Steve.

53    For the reasons already given, there is no such common law right. The first limb of Mr Azar’s unreasonableness argument cannot therefore succeed.

54    In support of the second limb of his argument, Mr Azar referred to the decision in Premalal v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 117 (Premalal). In Premalal, Einfeld J held that, in considering the reasonableness of a decision refusing the applicant’s application for “refugee status” under the Act (as it then stood), it was appropriate “to take into account the best available examples of objectivity in this field, namely the various international human rights principles and conventions to which Australia is a party.” (Premalal at 138). In particular, his Honour considered (at 140) that:

… the principle of unreasonableness may encompass the concepts of proportionality, consistency and legal certainty. Furthermore, and importantly in this context, reasonableness encompasses a recognition of fundamental human rights and unreasonableness may occur if they are breached or denied…

55    Consequently, his Honour held that the Court could have regard to findings by the delegate of extensive breaches of human rights in the applicant’s country of origin, such as arrest and incarceration without trial, in determining whether the decision that the applicant did not hold a well-founded fear of persecution was unreasonable (Premalal at 140-146). It can readily be seen that reference to international human rights in such a context does no violence to the legislative regime created by the Act then or today. To the contrary, in assessing whether an applicant for a protection visa has a well-founded fear of persecution, it is plainly relevant, if not necessary, for the administrative decision-maker to consider whether there is a real chance that the applicant, if returned to her or his country of origin, would be subjected to serious human rights violations.

56    However, that decision does not assist Mr Azar’s argument in this case. Here the submission is not simply that, in determining whether a decision is legally unreasonable, regard may be had to international human rights instruments. Rather, the effect of Mr Azar’s submission is that it is a condition of validity that a decision under subs 501CA(4) of the Act does not violate the rights enshrined by such instruments.

57    That submission must be rejected. First, rights and obligations contained in an international convention are incorporated into Australian domestic law only to the extent to which they are enacted by statute, as the applicant accepted: Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290-291 (Mason CJ and Deane J), 304 (Gaudron J agreeing on this point), 298, 302 (Toohey J), and 315 (McHugh J); Ruddock v Vadarlis at [203] (French J). Nor is there any fetter upon the Parliament legislating inconsistently with Australia’s international obligations: Horta v Commonwealth (1994) 181 CLR 183 at 195 (the Court).

58    Secondly, it is apparent from the terms of subs 501CA(4)(b)(ii) that the discretion to revoke is a broad one pursuant to which the Minister may have regard to factors such as the impact that cancellation of the visa may have upon the individual concerned and her or his family, and upon the Australian community: see e.g. BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 at [24] (Bromberg and Mortimer JJ); Poroa v Minister for Immigration and Border Protection [2017] FCA 826; (2017) 252 FCR 505 (Poroa) at [10] (Perry J). Furthermore, it has been held that the Minister in exercising the discretion under subs 501CA(4) must have regard to the risk of harm: Poroa at [35] (applying Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; (2015) 230 FCR 367 by analogy). As such, it is plainly relevant for the Minister to have regard to Mr Azar’s ties to Australia in the exercise of his discretion under subs 501CA(4), as the Minister in fact did. However, the applicant’s contention would effectively replace the broad discretion vested in the Minister under that provision with a duty to revoke the cancellation decision in virtually all cases where such ties exist, irrespective of other factors. The submission therefore seeks impermissibly to confine the Minister’s discretion to revoke the cancellation decision and cannot succeed.

59    In this regard, it must be borne in mind that the requirement that a statutory discretion be exercised reasonably is sourced in the implication that Parliament intended that it be so exercised: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [23]-[26], [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88]-[89] (Gageler J); Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 (Eden) at [58] (the Court). That being so, the starting point for any evaluation of whether an administrative decision is legally unreasonable, and therefore outside the range of lawful possible outcomes, must be the terms, scope and policy of the statutory source of the power: see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [11] (Allsop CJ, with whose reasons Wigney J agreed at [90]). As the Full Court explained, for example, in Eden:

63. … in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute: Li at [24] (French CJ), [67]-[67] (Hayne, Kiefel and Bell JJ); Stretton at [55] and [62] (Griffiths J). The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making: Stretton at [7] and [11] (Allsop CJ). The evaluation is also likely to be fact dependant and to require careful attention to the evidence: Singh at 445[42].

60    I acknowledge that this result undoubtedly has harsh consequences for Mr Azar and his family. However, the result is one that falls within the range of outcomes contemplated by the Act and, as such, does not provide a basis on which this Court can interfere. As Bromwich J held at [64] in Steve, “… the visa cancellation and revocation process in the [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.” It follows that the Ground 3 of the amended application must also be dismissed.

6.    CONCLUSION

61    For these reasons, the application for judicial review is dismissed with costs.

Associate:

Dated:    8 August 2018