Bridges v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2001-11-23|Before: Hely JJ

background 14 The appellant was born on 6 December 1943 in London and is a British citizen. He is a qualified freezer mechanic and domestic appliance engineer. He migrated to Australia in October 1982 with his wife, whom he had married in 1967. The appellant and his wife were accompanied by their two adopted children. The children had been adopted in 1972 when they were infants. 15 On 20 March 1995, the appellant's daughter, then aged 23, made a statement to the police in which she alleged that the appellant had sexually abused her, both in England and in Australia. She alleged that the abuse commenced when she was five years of age and continued until a few days prior to the date of her statement. 16 In consequence of the daughter's statement, the appellant was charged with six offences. He was committed for trial on 1 June 1995. He pleaded not guilty at his trial in the Supreme Court of Western Australia, which was held in February 1996. The appellant was, however, ultimately found guilty on all six counts. 17 On 28 February 1996, the appellant was sentenced by Walsh J to a total of ten years imprisonment, although the appellant was given credit for one year and six months already spent in custody. The convictions and sentences are set out in the following table, which is derived in part from the AAT's reasons and in part from an extract from the Criminal Record Book included in the papers before the AAT. THE APPELLANT'S CONVICTIONS AND SENTENCES Count Date and Nature of Offence Sentence 1 Between 1 January 1985 and 30 November 1985, unlawful and indecent dealing with a child under the age of fourteen years One year and six months imprisonment, concurrent with other sentences imposed. 2 Between 1 January 1986 and 31 December 1986, unlawful carnal knowledge of a girl under the age of seventeen years by a guardian Two years imprisonment, cumulative on other sentences imposed. 3 Between 1 January 1986 and 31 December 1986, unlawful carnal knowledge of a girl under the age of seventeen years by a guardian Two years imprisonment, cumulative on other sentences imposed. 4 Between 11 February 1988 and 10 February 1989, unlawful carnal knowledge of a girl under the age of seventeen years by a guardian Two years imprisonment, concurrent with other sentences imposed 5 Between 1 September 1994 and 30 September 1994, sexual penetration without consent Four years and six months imprisonment, taking into account one year and six months detained in custody, cumulative on other sentences imposed 6 Between 1 September 1994 and 30 September 1994 Sexual penetration without consent Four years and six months imprisonment, taking into account one year and six months detained in custody, concurrent with the sentence imposed in respect of Count 5.

18 An application for leave to appeal against conviction was dismissed by the Court of Criminal Appeal on 29 May 1996. 19 On the basis that the appellant was a permanent resident from the date of his arrival in this country, the first four counts on which he was convicted related to offences committed well before the expiration of the ten year period of permanent residence referred to in s 201(b) of the Migration Act. Counts 5 and 6, however, concerned offences committed after the ten year period had expired.

the AAT's reasons 20 In view of the narrow issue raised on the appeal, it is not necessary to canvass the AAT's reasons in detail. Some reference to them is helpful, however, in understanding the significance of the issue of construction. 21 The AAT quoted from the remarks by Walsh J in the Supreme Court of Western Australia when sentencing the appellant. His Honour observed that the ways in which the appellant treated his adopted daughter could "only be described as outrageous. [The appellant] sexually exploited her to satisfy [his] own sexual needs over very many years. [The appellant] did so in a manner which I…consider to be extraordinarily degrading and abhorrent to any right minded person in the community…. It is quite apparent from the manner in which [the appellant] gave [his] evidence that [he] does not appreciate the extent of [his] misconduct or indeed the disgusting way in which [he] treated [his] daughter." 22 The AAT noted that s 499 of the Migration Act required it to "have regard to" the terms of General Direction No 9 (Australia's Criminal Deportation Policy: Criminal Deportation under Section 200 of the Migration Act 1958). (In fact, s 499(2A) of the Migration Act requires the AAT to "comply with the direction under sub-section (1)". Nothing, however, turns on this in the present appeal.) The AAT identified the relevant "primary consideration" referred to in the Direction as "the expectations of the Australian community". The expectations of the community, according to the AAT, had two aspects: the expectation that the community would be protected and not put at risk; and the expectation that non-citizens who commit abhorrent crimes will be removed from Australia. The AAT identified three factors as relevant to the expectations of the Australian community understood in this sense, namely the seriousness and nature of the crime, the risk of recidivism and the deterrent effect of a deportation order. 23 So far as the first of these factors was concerned, the AAT pointed out that the Direction nominated sexual assaults on children as serious offences for the purposes of determining whether there is an expectation in the Australian community that an offender will be removed. The AAT referred to the comments of Walsh J and added that the seriousness of the appellant's offending was heightened by the continuity of his behaviour over a long period of time. It is plain that the AAT, in making this assessment, took into account all six offences for which the appellant had been convicted and sentenced. 24 In relation to the risk of recidivism, the AAT found that the appellant was not prepared to accept his guilt under any circumstances in relation to count 1, nor in relation to counts 5 and 6. The AAT considered that the refusal of the appellant to accept the gravity of his behaviour raised serious questions about the extent of his remorse and rehabilitation. The AAT found that he presented an unacceptable risk to the Australian community in the sense that there was more than a very low risk of re-offending. This finding also plainly took into account his convictions on counts 5 and 6. 25 The AAT expressed its ultimate conclusion this way: "Having considered all the evidence and weighing up the considerations required by the Direction to be taken into account, the competing considerations fall on the side of your deportation. I am satisfied that despite the undoubted hardship factors which flow from deportation these considerations are, in my opinion, outweighed by the nature and circumstances of your offending, the doubts I have about the extent of your rehabilitation and the best interests of the Australian community, which includes the right of your daughter as a member of that community to enjoyment of life free from your presence in the community to which you would return."

the submissions 26 The appellant submitted that s 201 of the Migration Act made it clear that only offences committed prior to the expiration of an offender's ten year period of permanent residency could be taken into account by the decision-maker when considering whether to exercise the power conferred by s 200. Although the submission was not developed, in substance it was argued that s 201(b) should be read as impliedly limiting the scope of the discretion conferred by s 200. The statutory policy was said to be that a non-citizen permanently resident in Australia for more than ten years should be assured that no criminal offences can affect his or her status as a member of the Australian community. The appellant pointed to anomalies that could arise if the contrary view were taken. A non-citizen permanent resident of eleven years standing, without any prior convictions, who committed a very serious offence was not at risk of deportation under s 200 by reason of that offence (although such a person could be subject to cancellation of his or her visa on "character" grounds: see Migration Act, ss 501(2), 501B(2)). But a non-citizen permanently resident in Australia, who committed a relatively minor offence before the expiration of the ten year period (albeit meriting a sentence of imprisonment for not less than one year) could be the subject of a deportation order under s 200 by reason of a more serious offence committed after the expiration of the ten-year period. 27 The Minister submitted that ss 200 and 201 of the Migration Act, when read together, confer on the Minister an unfettered discretion to order the deportation of a non-citizen who has been convicted of an offence which was committed when the non-citizen had been permanently resident in Australia for less than ten years and in respect of which offence the non-citizen was sentenced to a period of imprisonment of not less than one year. The power in s 200 is one to be exercised in the overall interests of the Australian community and, so it was argued, it would impermisibly fetter the exercise of that discretion if the Minister was unable to have regard to convictions for offences committed beyond the ten year period of permanent residency. The subject matter, scope and purpose of the Migration Act, so it was argued, strongly suggested that no such implied limitation should be read into the statutory discretion conferred by s 200.

The Statutory Language 28 The language and structure of ss 200 and 201 of the Migration Act support the Minister's submissions. The Minister has power under s 200 to "order the deportation of a non-citizen to whom this Division [Part 2, Div 9] applies". Section 200 clearly contemplates that other provisions in Div 9 will determine whether a particular non-citizen is liable to deportation pursuant to the power granted by s 200 itself. Once the Division applies to a non-citizen, s 200 confers a discretion on the Minister to deport the person which, in terms, is unconfined. The general principle is that stated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, at 40: "where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except insofar as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard." 29 Section 201 is one of three sections in Div 9 which specifies circumstances in which s 200 applies to a person. (The others are ss 202 and 203.) Section 201 relevantly provides that where · a non-citizen has been convicted in Australia of an offence; · at the time the offence was committed the non-citizen, if a permanent resident of Australia, had been permanently resident for less than ten years; and · the offence was one for which the non-citizen was sentenced to imprisonment for a period not less than a year, s 200 applies to the non-citizen. It is clear that when s 200 refers to a "non-citizen to whom this Division applies", it includes a person to whom s 200 applies by reason of s 201. 30 The language of s 201 is apt to identify a precondition which, if satisfied, enlivens the Minister's power in s 200. As Smithers J said in his judgment in Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666, at 669, in relation to s 12 of the Migration Act, a predecessor of ss 200 and 201: "[Parliament] has specified the condition which must exist before an alien can be described as legally deportable. The condition is that the alien has suffered a conviction of the nature specified in the section. Once that condition is fulfilled it is a matter for the judgment of the Minister whether he exercises the power of deportation conferred on him thereunder". (His Honour dissented, but not on a point related to this comment.) 31 There is nothing in the language of s 201 which suggests that the apparently unconfined discretion conferred by s 200 to deport the legally deportable non-citizen should be read as subject to an implied limitation that only the deportable offences referred to in s 201 may be taken into account in determining whether the non-citizen should be deported. Section 201 is concerned to specify the precondition that must be satisfied before the power to deport in s 200 is enlivened. Had Parliament intended the terms of s 201 to limit the scope of the power conferred by s 200, it would have been easy to say so. 32 That s 201 is not intended to limit s 200 in this way is suggested by the factors that have been identified as relevant to the exercise of the power of deportation. In Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649, Fisher and Lockhart JJ, referring to the power then conferred by s 12 of the Migration Act, said (at 653) that: "The Tribunal's task includes assessing the deportee's character and personality, his criminal behaviour, the risk of repetition of criminal acts, the likelihood of his rehabilitation, the future risk to the Australian community if he remains here and the likelihood of harm to him if he is deported." Substantially the same approach has been taken to s 200 in its current form. Thus in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, at 243, the Full Court gave as illustrations of the matters the Minister must take into account when making a deportation decision, the following: "· the nature of the offence · the risk of further offences · the extent of rehabilitation already achieved and · the person's previous general record of conduct." 33 It is difficult to suppose, at least in the absence of a clear expression of legislative intent, that Parliament contemplated that the Minister, in assessing these matters, is bound to exclude from consideration criminal offences committed outside the ten year period referred to in s 201(b) of the Migration Act. It would seem somewhat curious that Parliament would require the decision-maker to assess, for example, the likelihood that the non-citizen will reoffend or the danger he or she poses to the Australian community, without reference to events that have actually occurred and that are known to the decision-maker. Of course, Parliament may choose to adopt this course. But it might have been expected that, if Parliament intended such a result, it would employ much clearer language to signify its intention than appears in s 201. 34 Further support for the view we have expressed is provided by s 202 of the Migration Act. It provides that, where it appears to the Minister that the conduct of a person referred to in s 201(b) constitutes a threat to internal security, and the Minister has been furnished with an adverse security assessment in respect of the non-citizen, s 200 applies to that non-citizen. The logic of the appellant's position is that the Minister, when determining whether to deport a non-citizen on security grounds, cannot take into account events occurring after the ten year period referred to in s 201(b). This would be so notwithstanding that the events demonstrate, in an otherwise doubtful case, that the non-citizen plainly constitutes a serious threat to Australia's security. This would be a surprising result.

Subject Matter of the Migration Act 35 If the subject matter, scope and purpose of the Migration Act requires s 200 to be read as subject to an implied limitation that only legally deportable offences within s 201 can be taken into account, the appellant would be entitled to succeed. In our view, however, the subject matter, scope and purpose of the Migration Act do not lead to this conclusion. 36 The appellant did not identify any features of the legislation, other than the terms of ss 200 and 201, that supported his case. It might be argued, however, that the provisions in the Migration Act concerning cancellation of visas on character grounds support the appellant's position. Section 501(2) of the Migration Act, for example, permits the Minister to cancel a person's visa if the person does not satisfy the Minister that the person passes the "character test". A person does not pass the character test, inter alia, if he or she has been sentenced to a term of imprisonment of 12 months or more: s 501(6)(a), 501(7)(c). It could be argued that these provisions make it more plausible that Parliament intended that the deportation power in s 200 be confined by an implication drawn from s 201. This is because criminal offences outside the scope of s 201 (and therefore, on the appellant's argument, not to be taken into account in determining whether a deportation order should be made under s 200) can nonetheless be taken into account in considering whether to cancel the offender's visa on character grounds. 37 In our view, s 501 of the Migration Act (and other provisions relating to cancellation of visas on character grounds) do not justify limiting the power in s 200 so as to prevent the Minister taking into account non-deportable offences in considering whether or not to make a deportation order. The Full Court has held, in relation to an earlier version of s 501, that the criteria to be taken into account in exercising the power to cancel a visa on character grounds are different from those to be considered in relation to the power of deportation conferred by s 200: Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400, at 408. (The reasoning of the Full Court in Gunner was said by the High Court in Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421, at 441, per Gleeson CJ and Gummow J (with whom Hayne J agreed); at 451, per Kirby J, to be correct.) There is no reason to suppose that the reasoning in Gunner does not apply to s 501 in its present form. It is true that s 501 provides a source of power to deport a non-citizen by reason of, amongst other things, his or her criminal history. But it is a distinct power, with its own legislative history, which requires, or at least permits, criteria to be taken into account different to those applicable to s 200 of the Migration Act. In our view, the power to cancel a visa on character grounds does not provide a basis for reading down the discretion conferred by s 200. It is to be remembered that the power of deportation is exercised not for the purpose of punishing an offender, but to protect the Australian community: Ex Parte Walsh and Johnson; In re Yates (1925) 37 CLR 36, at 61, per Knox CJ, at 96, per Isaacs J; O'Keefe v Calwell (1940) 77 CLR 261, at 278, per Latham CJ. There is no reason to think that the distinct sources of Ministerial power were intended to be anything other than cumulative. 38 We should add that, contrary to the appellant's submissions, we see nothing anomalous in a construction of s 200 of the Migration Act which permits the Minister, in exercising his or her discretion to make a deportation order, to take into account offences not themselves within s 201. The underlying policy is that a non-citizen who resides permanently within Australia for a period of ten years and commits no offences of the kind described in s 201 during that period, is not liable to deportation pursuant to s 200. If, however, the non-citizen permanent resident does commit such an offence, he or she is liable to have other offences (as well as favourable developments occurring outside the ten year period) taken into account in determining whether or not a deportation order should be made.

The Authorities 39 The question of construction arising in this case does not appear to have been directly addressed in the authorities. It has been assumed in at least two decisions that the Minister, in exercising the power conferred by s 200, or its predecessor, is not limited to taking into account deportable offences identified in s 201, or its equivalent in earlier legislation. Another judgment, that of the Full Court in Gunner, appears to have taken a different view. 40 The issue in Haoucher v Minister for Immigration, Local Government and Ethnic Affairs (1993) 42 FCR 287, was whether the Minister, in considering a recommendation by the AAT to revoke a deportation order made pursuant to s 12 of the Migration Act, was entitled to take into account convictions for offences committed after the AAT had made its recommendation. (At this time the AAT's powers on review of a deportation decision were limited to affirming the decision or remitting the matter for reconsideration in accordance with its recommendations: see Minister for Immigration and Ethnic Affairs v Pochi (1981) 149 CLR 139.) Section 12 of the Migration Act was then in the following terms: "Where- (a) a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence; (b) at the time of the commission of the offence the person - (i) was not an Australian citizen; and (ii) had been present in Australia as a permanent resident for a period of less than 10 years…; and (c) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year, the Minister may order the deportation of the person." 41 It would seem clear enough that, although no specific finding was made, the appellant had been present in Australia as a permanent resident at least since January 1979 (at 288). A number of offences taken into account by the Minister were committed between 1990 and 1992. 42 The Full Court rejected the appellant's contention that the Minister could not take into account offences committed after the AAT had made its recommendation. Their Honours said this (at 296, 298): "There is nothing in the Migration Act which requires the Minister to limit his reconsideration to events such as they existed at the time of the Tribunal's recommendation. Any such limitation would be not only inconvenient and artificial but would be inconsistent with the subject matter, scope and purpose of the Act. The Minister is charged with the very heavy responsibility under the Act to act in the interests of the Australian community and there is nothing to suggest that in the exercise of a very important function under the Act the Minister is obliged to act on material that may be inadequate, stale or erroneous. … In this case a crucial question for consideration at all time was the risk that the appellant would be a recidivist. This was critical to the decision of the AAT and to the original decision of the Minister. It was also critical to the ultimate decision of the Minister. When the Minister came to make his final decision he was in a position to assess the risk that the appellant would offend again by looking at what had happened in fact. As Latham CJ observed in Willis v Commonwealth (1946) 73 CLR 105 at 109: '…where actual facts are known, speculation as to the probability of those facts occurring is surely an unnecessary second-best'." While these observations were not directed to the issue of construction arising in the present case, they provide some support for the view we have expressed as to the unconfined nature of the discretion conferred by s 200 of the Migration Act. 43 A second relevant case is Minister for Immigration and Multicultural Affairs v Ali [2001] FCA 1385. By way of background to that decision, it is necessary to point out that the authorities establish that, where a conviction is the foundation for the exercise of the power to deport now contained in s 200 of the Migration Act, no challenge can be made in deportation proceedings to the fact of the conviction or to the essential facts on which it is based: Minister v Daniele; Degerli v Minister for Immigration and Ethnic Affairs (1981) 4 ALN N39; Minister for Immigration and Affairs v Gungor (1982) 42 ALR 209; Minister v SRT. Thus in Minister v SRT, the Full Court said (at 244): "[W]here the decision to be reached depends upon there having been a sentence that satisfies s 201(c) of the Act, it is not open to the Tribunal to engage in any inquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence." 44 None of these authorities involved convictions that were offences within s 201 of the Migration Act. In Minister v Ali, however, the AAT had given consideration to a number of convictions for offences committed by a non-citizen against whom the Minister had made a deportation order. One conviction was for assault occasioning actual bodily harm, for which the non-citizen was sentenced to nine months imprisonment. That conviction could not of itself have been the foundation for the exercise of the deportation power, since the term of imprisonment was less than twelve months: s 201(c). 45 The Minister applied for judicial review on the ground that the AAT had impermissibly gone behind two of the convictions and examined whether the non-citizen had been correctly convicted and sentenced. One was the assault conviction. It is not clear what sentence was imposed in respect of the other conviction, for theft of a motor vehicle. In any event, Branson J (at [22]) identified the relevant question as whether "the Tribunal may go behind the outcome of a criminal proceeding to which the person the subject of the deportation order was a party where the criminal proceeding was not that which resulted in the conviction and sentence that enlivened the power to make the deportation order." (Emphasis added.) Her Honour held (at [43]) that the Migration Act should be construed as requiring a decision-maker under s 200 to treat a conviction and sentence (not being the sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they were necessarily based. 46 Minister v Ali was clearly argued on the assumption that the AAT was entitled, if not bound, to consider the non-citizen's convictions for offences not within s 201 of the Migration Act. Her Honour therefore did not specifically address the construction issue. But the judgment shows how, on the construction we prefer, the principles limiting the AAT's power to go behind convictions might be interpreted to accommodate convictions for offences that fall outside s 201 of the Migration Act, either because they were committed outside the ten year period or because they attracted sentences of less than twelve months imprisonment. 47 In contrast to these two cases, the Full Court in Minister v Gunner (which was not cited by either party) made observations which appear to support the appellant's position in the present case. In Gunner, the question was whether the Minister had power to make orders for the cancellation of a non-citizen's visa under s 501 and to grant a certificate under s 502 of the Migration Act (which provides for the Minister to declare the non-citizen an excluded person, thereby excluding judicial review of the decision), in circumstances where the AAT had previously set aside an order made by the Minister's delegate under s 200 for the non-citizen's deportation. The Full Court held that the Minister's powers under ss 501 and 502 of the Migration Act were unaffected by the AAT's previous decision. The Court made these additional comments (at 408): "In any event, it is not entirely correct to say that the Minister's decision was 'based on' the same facts and circumstances as had been considered by the AAT. The Minister did not have before him any material which was not before the AAT. But because of the different provisions of ss 201 and 501 the test is not the same and the criteria are different. The Minister, in exercising the discretion conferred by s 501, was entitled to take into account matters which were not relevant to a decision under s 200 based on the criteria specified in s 201. The banking conspiracy offence, by far the most serious, was not viewed as a deportable offence because it was ongoing before the respondent became a permanent resident. Further, the passport conspiracy offence did not fall within s 201 because it resulted in a sentence of less than 12 months. On the other hand, both of those matters were factors which were relevant to the determination by the Minister of whether or not he should be satisfied that the respondent was not of good character. The Minister, in acting under s 501, is to have regard to any past criminal conduct and the person's general conduct. The words 'good character' should be understood as a reference to the enduring moral qualities of a person. Conduct may make those qualities visible, but it should not be confused with them. In each case, having had regard to the conduct, the Minister must still come to a further conclusion, namely, whether or not to be satisfied that the person is not of good character: see Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 197." 48 This passage seems to imply two propositions: · first, the AAT, in considering whether to affirm or revoke the deportation order, made in respect of Mr Gunner, had not taken into account the banking conspiracy or passport offences committed by him, because neither was within s 201 of the Migration Act; and · secondly, the AAT had correctly regarded these convictions as irrelevant to the exercise of its discretion pursuant to s 200 of the Migration Act, because it was entitled to consider for this purpose only offences within s 201. 49 Although the reasoning of the AAT (reported as Re Gunner v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 330) is not entirely clear on the point, it is, with respect, doubtful whether in fact the AAT excluded the banking conspiracy and passport offences from its consideration. The AAT specifically referred, for example, to the banking conspiracy offences on two occasions in the course of considering whether the deportation order should be affirmed or revoked (at pars 47 and 50). These references suggest that the AAT regarded the banking offences, at least, as relevant to that issue notwithstanding that they would not, of themselves, have enlivened the power in s 200. 50 The second point implicit in the Full Court's reasoning is more directly relevant to the present case. If the Full Court's apparent view of the relationship between ss 200 and 201 of the Migration Act constitutes an essential part of its reasoning, its approach should be followed by this Court, particularly having regard to the approval of the decision and reasoning by the High Court in Minister v Jia. This is so notwithstanding that the Full Court did not have occasion to explain why it considered that the criteria set out in s 201 limit the matters that are relevant to a decision under s 200 of the Migration Act. 51 In our view, however, the reference in Gunner to the interrelationship between ss 200 and 201 of the Migration Act was not an essential step in the Full Court's reasoning. The passage we have quoted begins with the words "in any event". The Full Court had previously held (at 407-408) that ss 501 and 502 provide "separate sources of power" (from ss 200 and 201) and that the fact that the powers might be exercised in relation to the same "collocation of facts" as had previously been considered by the AAT in exercising its discretionary power under s 200 could not affect the meaning of ss 501 and 502. In the passage we have quoted from Gunner, the critical point being made by the Full Court was that the criteria governing the exercise of the power to deport under s 200 are not the same as those governing the cancellation of a visa on character grounds under s 501. The Court's suggestion that the banking conspiracy and passport offences were excluded from the scope of the discretionary power under s 200 was merely an illustration of this point. The proposition that the scope and nature of the discretion conferred by s 200 are not identical to that conferred by s 501, stands independently of the particular illustrations provided by the Full Court. In our view, the illustrations given by the Full Court to exemplify the differing scope of the discretionary powers conferred by s 200, on the one hand, and ss 501 and 502, on the other, did not constitute an essential step in its reasoning. The comments on the relationship between ss 200 and 201 are, therefore, to be regarded as obiter dicta. 52 Of course, if the High Court in Minister v Jia intended to approve all aspects of the reasoning in Minister v Gunner, that would very considerably strengthen the argument that the view apparently held by the Full Court as to the limited scope of the discretionary power conferred by s 200 of the Migration Act should be followed. But we do not understand the High Court's approval in Minister v Jia of the reasoning in Gunner to extend to this particular issue. Gleeson CJ and Gummow J expressed (at 441) approval of the reasoning in Gunner in the context of rejecting an argument that ss 501 and 502 should be qualified by an unexpressed limitation to the effect that the powers conferred by those sections cannot be exercised where the AAT has previously set aside a deportation order, unless there has been a material change of circumstances. The passage from Gunner quoted by their Honours (not the same one as we have cited) supported their Honours' rejection of this argument, because in that passage the Full Court pointed out that the Minister had not disobeyed the AAT's ruling, but had rather exercised a separate statutory power available to him. We do not read their Honours' judgment (nor that of Kirby J) as endorsing the comments in Gunner to the effect that s 201 should be read as limiting the scope of the discretion conferred by s 200. 53 In our respectful opinion, the dicta in Gunner, to the extent that they were intended to convey a view about the relationship between ss 200 and 201 of the Migration Act, should not be followed. Perhaps not surprisingly, given the issues in Gunner itself, the Full Court did not explain why it implicitly endorsed a construction which constrains the scope of the discretion conferred by s 200 of the Migration Act by reference to the class of offences identified in s 201. For the reasons we have given, we prefer a construction that permits the Minister and the AAT, in cases where the power conferred by s 200 of the Migration Act is enlivened, to take account of offences committed by a non-citizen, even though they would not, of themselves, render the non-citizen liable to a deportation order.

Legislative History 54 The legislative history of ss 200 and 201 of the Migration Act is consistent with the construction we have adopted. Section 12 of the Migration Act, in its original form, authorised the Minister to deport, inter alia, any alien who had been convicted in Australia of any offence for which a sentence of imprisonment for one year or longer had been imposed. A new s 12 was introduced into the Migration Act by the Migration Amendment Act 1983 (Cth), s 10. The form of the new s 12 has been set out earlier in these reasons (see [40] above). 55 The Minister's second reading speech for the 1983 Bill explained the purpose of the amendment as follows (Cth Parl Deb, HR, 26 May 1983, at 1085-1086): "Apart from removing the distinction and discrimination between non-Commonwealth and other overseas-born residents who are not Australian citizens, the Bill also limits liability for deportation, generally speaking, to those non-citizens who commit offences during the first 10 years of permanent residence and introduces a more exact measure of the seriousness of the crime, that being an actual penalty of imprisonment for 12 months or more. The introduction of a statutory liability period of 10 years authorised residence fulfils a pre-election commitment by my Government that non-citizens should be free from the threat of deportation after a certain period. Currently persons who are citizens of non-Commonwealth countries remain always liable to deportation unless they become Australian citizens. This is unacceptable. In administering a large-scale immigration program the Government and the community must be prepared to accept some 'bad with the good'. The overwhelming majority of non-citizens who settle in this country are law-abiding members of the community and have a right to expect, after 10 years of lawful residence, that they will not be expelled." It appears that the election pledge was made against the backdrop of the High Court's decision in Pochi v MacPhee (1982) 151 CLR 101, upholding s 12 of the Migration Act on the ground that an immigrant who has not been naturalised does not cease to be an alien, for the purposes of the Constitution, s 51(xix), by absorption into the Australian community. 56 The extract from the second reading speech is consistent with the construction we have adopted, since liability for deportation under s 200 is limited to those non-citizens who commit serious offences during the first ten years of permanent residence. There is nothing in the Minister's comments that suggest it was the intention that a non-citizen who commits such offences is entitled to have the question of deportation considered without regard to any other "non-deportable" offences that he or she may have committed. 57 We should note that later amendments to the Migration Act separated s 12 (as introduced in 1983) into two separate provisions, corresponding to what are now ss 200 and 201 of the Migration Act, although these were initially numbered as s 55A and s 55 respectively. The separation into two provisions was brought about by the Migration Reform Act 1992 (Cth), s 14and, according to the Explanatory Memorandum, was intended to provide the Minister with a single power to order the deportation of the non-citizen in the circumstances that are now set out in ss 201, 202 and 203 of the Migration Act: see Explanatory Memorandum to the Migration Reform Bill 1992, par 53. Again, the amendments to which we have referred in this paragraph are consistent with the construction of ss 200 and 201 we have adopted.

conclusion 58 The appeal must be dismissed. The appellant must pay the Minister's costs of the appeal. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices SACKVILLE, KIEFEL & HELY JJ.

Associate: Dated: 23 November 2001 Counsel for the Appellant: Mr V De Alwis

Solicitor for the Appellant: De Alwis & Associates

Solicitor for the Respondent: Australian Government Solicitor

Migration Amendment Act 1983(Cth)

Migration Reform Act 1992(Cth)

the issue 8 The primary Judge held that it was "highly arguable" that the AAT had taken into account irrelevant considerations when exercising, in place of the Minister, the discretionary power conferred by s 200 of the Migration Act 1958 (Cth) to order the deportation of a non-citizen. His Honour had in mind that the AAT had taken into account two convictions for offences committed by the appellant at a time when he had been in Australia as a permanent resident for more than ten years. One of the contentions put to the primary Judge by the appellant's counsel was that s 200 of the Migration Act should be construed as precluding the decision-maker from considering any offence committed outside the ten year period referred to in s 201(b), when deciding whether a deportation order should be made against the offender. 9 The primary Judge took the view that it was unnecessary for him to rule on the question of construction because, even if an error of law had been committed by the AAT, it was an immaterial error. His Honour held that the AAT would not have been likely to form a different view of the appellant's case had it taken into account only the four convictions for offences committed by the appellant before the expiration of the ten year period referred to in s 201(b) of the Migration Act. 10 In the course of argument, Mr Macliver, who appeared for the Minister, conceded that he could not uphold the ground relied on by the primary Judge for dismissing the application. This concession was properly and fairly made. The governing principle is that a decision of an administrative tribunal will be set aside for error of law if it can be shown that the error could have affected the outcome of the case, that is that a different result might have been reached had no error of law been made: X v Commonwealth (1999) 200 CLR 177, at 210-211, per Gummow and Hayne JJ, with whom Gleeson CJ and Callinan J agreed; Gibson v Repatriation Commission [2000] FCA 739, at [5], per curiam. This was not the principle applied by his Honour. 11 Mr Macliver also conceded that if the primary Judge had applied the correct principle (assuming the AAT had made an error of law) he would have inevitably concluded that the error of law could have affected the AAT's decision. This concession, too, was proper and fair. 12 It follows that the only issue on the appeal is the question of construction of ss 200 and 201 of the Migration Act. Since his Honour did not resolve that question against the Minister, there was no need for the Minister's representatives to file a notice of contention in respect of it: see Federal Court Rules, O 52 r 22(3). 13 We should mention that no issue was raised on the appeal concerning the recent decision of the High Court in Re Patterson; Ex parte Taylor (2001) 182 ALR 657. That case concerned the Commonwealth's power to make laws with respect to "aliens" (Constitution, s 51(xix)), specifically its power to make laws for the cancellation of the visas of British subjects who have migrated to Australia and have been absorbed into the Australian community. We merely note that there are important differences between the facts of the present case and those in Re Patterson.

At a glance

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Judgment (12 paragraphs)

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Legislation Cited (4)

Cases Cited (19)

Cited By (6)