Akpata v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 This is another matter that has been remitted to this Court from the High Court as a consequence of the latter court's decision in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. It raises two related questions. The first is whether the respondent Minister breached the rules of natural justice in refusing to grant a visa to the applicant, the Minister not being satisfied that Mr Akpata passed the character test prescribed in s 501 of the Migration Act 1958 (Cth) ("the Act"). The second is whether in reaching that decision the Minister failed to have regard to a relevant consideration. The Minister's decision being a "privative clause" one for the purposes of s 474 of the Act, this Court only has jurisdiction in this matter if either of the errors ascribed to the Minister had the character of a "jurisdictional error": see generally Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. 2 The questions in issue arise in this way. Mr Akpata, a Nigerian citizen, entered Australia on a student visa in 1994 with his wife and two children one of whom is a New Zealand citizen (she having been born in that country). In December 1995 he applied, in the event unsuccessfully, for a protection visa. That application generated a number of applications to this Court and was at the time of the decision under review the subject of a pending special leave application to the High Court by Mr Akpata. That leave was recently refused. In 1999 he was granted his most recent bridging visa. It is the cancellation of that visa in the rather distinctive circumstances noted below that has triggered this proceeding. 3 In August 1999 an application was made for a "103 Parent Visa" ("the parent visa"). Such a visa application would appear to have been refused in 1998 although Mr Akpata contends it was merely rejected by the Department's officers. The principal applicant in the 1999 application was Mrs Akpata. Mr Akpata and his son were secondary applicants. 4 The Minister dealt with Mr Akpata's parent visa application personally. Acting under s 501 of the Act he refused the application on "character grounds", the Minister not being satisfied that Mr Akpata passed the character test. A consequence of that decision was, by virtue of s 501F(3) of the Act, that the Minister was taken to have decided to cancel the applicant's bridging visa. That consequence rendered Mr Akpata an unlawful non-citizen who was subject to detention under s 189 of the Act. He was taken into immigration detention on 13 June 2002 where he now remains and will be kept until he is removed or deported from Australia or is granted a visa: the Act, s 196. 5 Before the Minister took his decision under s 501 of the Act, an officer of his Department wrote to the applicant in February 2002. That letter indicated that it had come to the attention of the Department that Mr Akpata's parent visa might be liable for refusal under s 501(6)(a) of the Act Mr Akpata having a "substantial criminal record" for the purposes of the Act. He had on two separate occasions been convicted of offences that were in essence ones of dishonesty and had in each instance been sentenced to twelve months imprisonment. The letter went on to state (inter alia): "Before the Minister or his delegate considers whether to refuse your visa application under subsection 501(1), you are provided with an opportunity to comment. Matters to be in taken into account include the following: . the criminal convictions which you have incurred (as per attachment) In reaching a decision whether to refuse your visa application under section 501, the Minister or his delegate will have regard to the matters noted above and the attached Minister's direction 21 titled 'Direction under section 499 - Visa refusal and cancellation under section 501 Migration Act 1958'. In preparing your response, please read fully and carefully the contents of the Minister's Direction. You should address each and every topic that you feel applies to you or is relevant to your circumstances. You may also wish to provide any further information that you feel the Minister or his delegate ought to be aware of and take into account." 6 In his lengthy response to the above letter Mr Akpata addressed some numbers of the matters raised in Direction 21. These included (a) his convictions (b) mitigating circumstances and factors and (c) various aspects of the "Primary Considerations" referred to in the Direction which he considered applied to him and which were relevant to his circumstances. 7 On 11 June 2002 and as noted above, the Minister determined to refuse the parent visa. On 13 June 2002 Mr Akpata was informed by letter of this decision and was on that day taken into immigration detention in virtue of his being an unlawful non-citizen. The Applicant's Challenges to the Minister's Decision 8 Mr Akpata (who represented himself in this proceeding) puts his challenge on two bases. 9 The first is that the Minister committed a jurisdictional error in making his s 501(1) decision to refuse a parent visa in that he denied Mr Akpata natural justice. The denial of natural justice alleged was that the Minister failed to inform him that if his visa was refused his bridging visa would be cancelled and he would become an unlawful citizen liable to detention. Such detention affected his personal liberty and had a significant impact on him and on his family both emotionally and financially. If he had been made aware of this possibility he would, he says, have sought legal advice and would have made detailed submissions (the substance of which he outlined in an affidavit of 23 July 2002) relating both to his family earnings and to his own and his son's psychological well being and to the impact on each of these of his detention. I would interpolate each of these matters were averted to in the actual submission he made. 10 The second ground of challenge, again alleged to be a jurisdictional error, is that in the minute signed by the Minister recording his decision no reference was made to, and the Minister failed to have regard to, the consequences to Mr Akpata and his family of the automatic cancellation of his bridging visa under s 501F(3), if the parent visa was refused under s 501(1). This was a relevant consideration. 11 These matters will be considered in turn. I should first note, though, that no challenge has been made to the adequacy of the Minister's reasons for decision as such: cf Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 196 ALR 332. The Statutory Setting 12 The effect of ss 13 and 14 of the Act is that a non-citizen in the migration zone who does not hold a visa that is in effect, is an "unlawful non-citizen". 13 Section 189(1) prescribes that: "If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person." 14 Section 196 in turn prescribes (in part) that: "(1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is: (a) removed from Australia under section 198 or 199; or (b) deported under section 200; or (c) granted a visa. … (3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen been granted a visa." 15 Insofar as presently relevant, s 501 provides: "Decision of Minister or delegate - natural justice applies 501 (1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. … Character test (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); … Substantial criminal record (7) For the purposes of the character test, a person has a substantial criminal record if: … (c) the person has been sentenced to a term of imprisonment of 12 months or more." 16 Finally, s 501F provides insofar as presently relevant that: "(1) This section applies if the Minister makes a decision under section 501, 501A or 501B to refuse to grant a visa to a person or to cancel a visa that has been granted to a person. … (3) If: (a) the person holds another visa; and (b) that other visa is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection; the Minister is taken to have decided to cancel that other visa." The Earlier High Court Proceedings 17 This proceeding originated in the High Court prior to the decision in Plaintiff S157/2000. When the matter was heard by Gummow J, the same issue of denial of natural justice was raised as is the case in the present matter. For the purposes of that proceeding His Honour was able to proceed on the following basis: "It may be assumed, without deciding, that, in the circumstances, the rules of natural justice obliged the Minister, through the officers of his Department, to alert the applicant to the consequences for his bridging visa and the enlivening of ss 189 and 196 of the Act when giving him the opportunity to make submissions respecting the apprehended exercise of the power under s 501(1) to refuse him the parent visa." (See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Akpata [2002] HCA 34 at [17]. 18 His Honour did, though, refer in a footnote by way of comparison to the decision of Ryan J in Bunnag v Minister for Immigration and Ethnic Affairs (1993) 47 FCR 293 at 297-298 where it was observed in a migration matter that the rules of natural justice do not require an applicant to be warned of adverse consequences which might flow if an investigator's questions are answer in a certain way. 19 The position which Gummow J was able to assume when this matter was before him is that which I have now to decide. 20 Importantly, Gummow J did determine that no distinct procedural fairness requirement attached to s 501F(3). Referring to the deemed cancellation effected by the sub-section his Honour commented: "the phrase 'is taken to have decided' identifies a state of affairs brought about by the operation of the statute. No other outcome is possible. The Minister, for example, cannot decide that another visa held by the person in question is to remain in force. The Minister is not the repository of a power conferred by s 501F; there is no power conditioned by the obligation of the repository of the power to adopt, as Brennan J put it in Kioa v West: 'a procedure which conforms to the procedure which a reasonable a fair repository of the power would adopt in the circumstances when the power is exercised'." 21 It is unnecessary for present purposes to make further reference to the High Court proceedings. Conclusion (a) Natural Justice 22 I mean no disrespect to Mr Akpata for not referring in detail to his submissions. He referred to some number of decisions of courts in this country, Britain, Canada and the United States. In various settings, they referred (a) to what procedural fairness might require when personal liberty could be put in jeopardy by a decision to be taken and (b) to the significance attributed to the protection of personal liberty in the rules of statutory construction applied in this country. They had little direct bearing on the issue before me. 23 The short question Mr Akpata has raised is whether he should have been warned of one of the consequences (ie cancellation of his bridging visa and resultant exposure to immigration detention) that would flow from a decision under s 501(1) that was unfavourable to him where that consequence resulted from the operation of the Act itself and not from any decision of the Minister that that consequence should ensue. 24 When one has regard to the place and purpose of ss 501(1) and 501F(3) in the scheme of the Act, I am satisfied that natural justice did not require that such a warning be given. Section 501(1) is concerned not with the bare question whether a particular visa should be cancelled or refused. Within its province, its purpose in the usual case (cf s 501F(3)(b)) is to allow the Minister to determine whether or not a non-citizen should be allowed to enter or to remain within Australia: see Second Reading Speech, Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998, Vol H of R 223, (1998), 1229ff. I would interpolate that the "Preamble" to Direction No 21 revealed this very purpose to Mr Akpata. The s 501 character test is of general application to all visa applicants and holders. If a decision adverse to a particular visa applicant or holder was made under s 501(1), but that person already held and was able to retain another visa (other than a visa saved for example by s 501F(3)(b)), the effect of that decision would be nullified to the extent that that person would remain a lawful non-citizen (see s 13(1) of the Act) not liable to be removed from Australia under s 198 of the Act. The function of s 501F(3), in my view, is to preclude such an outcome. Thus it operates in aid of s 501 in the scheme of the Act in effectuating s 501's purpose. 25 For this reason while the decision of the Minister under s 501(1) of the Act attracted a natural justice requirement in relation to his doing what was mandated by that subsection (ie determining whether to refuse to grant a visa to a person who does not satisfy the Minister that he or she passes the character test), the obligation did not extend to explaining how, in the scheme of the Act, an adverse decision would be carried into effect. The focus of the natural justice obligation was the "character test" determination itself. If that is decided adversely to a visa applicant the consequences are, in the usual case (but cf s 501F(2)(b) and (3)(b)), pre-ordained by the Act. No matter how harshly those consequences might fall on an unsuccessful applicant, they are not of themselves capable of generating a natural justice obligation to warn of them as part of the processes leading to a s 501(1) decision. 26 I have emphasised "of themselves" above for this reason. As is made plain in Direction 21, the discretion to be exercised under s 501 can properly encompass consideration of effects that would flow from the unsuccessful visa applicant's removal from Australia. I need only refer without elaboration to those matters outlined in the Direction under the headings "The best interests of the child" and "Other Considerations". 27 The question of the warning apart, it has not been strongly suggested that procedural fairness (or natural justice) was not otherwise accorded Mr Akpata. The applicant did, though, raise the late contention that he was not provided with the departmental minute provided to the Minister of "Issues for Consideration" relating to Mr Akpata and on which the Minister signified his decision. That document was based on factual material known to and/or supplied by Mr Akpata and which was related to the decision making schemata of Direction No 21 to which Mr Akpata had been directed when submissions from him were invited by the Department. In reliance upon the decision of the Supreme Court of Canada in Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3, it has been submitted that the failure to provide Mr Akpata with the minute and the advice and options it contained was a breach of natural justice without more. 28 I need not refer further to Suresh's case and to the very distinctive circumstances it involved. It is not open to question in light both of the content of the letter and its annexures (including Direction No 21) sent to Mr Akpata in February 2002 and of his extensive response thereto, that he was given an opportunity to, and he did, deal with relevant matters adverse to his interests contained in the minute and which the Minister might possibly have taken into account in exercising his discretion: cf Kioa v West (1985) 159 CLR 550 at 628-629; see also Aronson and Dyer, Judicial Review of Administrative Action, 413ff (2nd ed). Significantly Mr Akpata has not pointed to any adverse material in the minute which was not disclosed to him. Mr Akpata was well aware of the case against him and he was given a fair and reasonable opportunity to meet it aided as he was by the guidance given in Direction No 21. 29 I reject Mr Akpata's breach of natural justice allegation. (b) Relevant Considerations 30 This ground of challenge is simply misconceived. The terms of the character test apart, the Act does not expressly state the considerations which the Minister is bound to take into account in making his decision under s 501(1): Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41. In my view, the subject matter, scope and purpose of the Act do not lead to or necessitate any implication that the Minister was bound to take account of the impact on a visa applicant of those machinery provisions of the Act (such as s 501F) that were designed to effectuate the actual purpose of an adverse decision taken under s 501(1) (ie the removal of that person from Australia). In any event, one can reasonably infer that the Minister was aware of those machinery provisions and, given Mr Akpata's special leave application at the time of the Minister's decision, that he was a visa holder of another visa. 31 I reject this ground of challenge to the Minister's decision. Orders 32 I will order that the application be dismissed and that the applicant pay the respondent's costs of the application. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn J.