Bukvic v The Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 The issues raised in this application for an order for review under Part 8 of the Migration Act 1958 (Cth) ("the Act") fall within a narrow compass. The applicant, George Bukvic, who was born in Yugoslavia on 6 May 1970, arrived in Australia as a migrant on 27 December 1986. On 11 October 2000 the Minister for Immigration and Multicultural Affairs ("the Minister") personally decided to cancel Mr Bukvic's visa under s 501(2) of the Act. The Minister had concluded that Mr Bukvic did not pass the character test as defined in s 501(6), as Mr Bukvic was unable to satisfy the Minister that he did pass that test as required by s 501(2). 2 The challenges as brought to the Minister's decision are premised upon the Minister being bound to apply directions he had given under s 499(1) of the Act ("Direction No 17"). It is alleged that the Minister did not comply with Direction No 17 and by so doing (a) failed to observe a procedure that was required by the Act to be observed in the making of the decision; and (b) erred in law in making his decision. The error of law complained of was that the Minister did not have regard to all of the considerations that Direction No 17 stipulated as was required of him, but rather the Minister selected "smorgasbord" style from among them in such a fashion as to breach, and hence misapply, the direction. 3 A distinct secondary challenge to the decision based on the no evidence ground of s 476(1)(g) of the Act will be referred to later in these reasons. Was the Minister Bound by Direction No 17 The Statutory Setting 4 Section 499 of the Act, insofar as presently relevant, provides: "(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about: (a) the performance of those functions; or (b) the exercise of those powers. … (2A) A person or body must comply with a direction under subsection (1). (3) The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given." Direction No 17 - the full title of which was "DIRECTION - VISA REFUSAL AND CANCELLATION UNDER SECTION 501 - NO 17" - took effect on 16 June 1999. Its "Preamble" included the following: "This Direction provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501 of the Migration Act 1958 (the Act). The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object the Minister has been given a discretion to refuse or cancel a visa where the visa applicant or visa holder does not pass the Character Test. In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it. The powers conferred under section 499 enable directions to be given, in exercising discretions under section 501, for the protection of the Australian community. Under the Character Test, visa applicants and visa holders must satisfy decision-makers that they can pass the test. When a visa applicant or visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen's links to Australia and any relevant international law obligations. The Act enables the Minister to give precise written directions on what weight is to be given to each of these factors. These directions are binding to [sic] all decision-makers, including merits review tribunals, to ensure a consistency of approach. … For the purposes of this Direction the term decision-maker includes both the Minister's delegates for the purposes of section 501 of the Act, and members of the Administrative Appeals Tribunal when conducting a review of a decision made under section 501 of the Act. PRELIMINARY This Direction consists of two parts. Part 1 provides directions on the application of the Character Test. Non-citizens who are being considered under section 501 must satisfy the decision-maker that they pass the Character Test. If the non-citizen does not pass the Character Test, decision-makers are to exercise the discretion to consider whether to refuse or cancel a visa, taking into account primary and other considerations. Part 2 provides directions on what these considerations are and the weight to be given to them." 5 For its part, s 501 insofar as presently relevant, 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. (2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. Decision of Minister - natural justice does not apply (3) The Minister may: (a) refuse to grant a visa to a person; or (b) cancel a visa that has been granted to a person; if: (c) the Minister reasonably suspects that the person does not pass the character test; and (d) the Minister is satisfied that the refusal or cancellation is in the national interest. (4) The power under subsection (3) may only be exercised by the Minister personally. (5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3). 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)); or … (c) having regard to either or both of the following: (i) the person's past and present criminal conduct; (ii) the person's past and present general conduct; the person is not of good character; or … Otherwise, the person passes the character test. Substantial criminal record (7) For the purposes of the character test, a person has a substantial criminal record if: (a) the person has been sentenced to death; or (b) the person has been sentenced to imprisonment for life; or (c) the person has been sentenced to a term of imprisonment of 12 months or more; or (d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more." The Minister's decision in the instant case was taken under s 501(2) of the Act. Applicant's Contention 6 It is the applicant's submission that, at least where the Minister acts under s 501(2), he is bound by such s 499 directions as would bind a delegate if that delegate, and not the Minister, was making the s 501(2) decision. This submission is based (i) on the provisions of s 499(2A) of the Act (which require the person to whom directions are given to comply with them) and (ii) on the references in the Direction itself to its being binding on "all decision-makers" and to its objective of ensuring "a consistency of approach". 7 Decisions of this Court are at variance with the applicant's submission. In Damanik v Minister for Immigration and Multicultural Affairs [2000] FCA 771 at [10] French J commented: "[a]s a matter of syntax s 499 does not bind the Minister himself. No doubt, however, he is entitled to take account of and apply the policy considerations reflected in any direction as factors relevant to the exercise by him of any discretion to which that direction applies." This view was followed by Drummond J in Baulch v Minister for Immigration and Multicultural Affairs [2001] FCA 139 at [21] where his Honour contrasted the Minister's position with that of his delegate, the latter but not the former being bound by Direction 17. 8 I am, in conformity with the comity principle applied in this Court, obliged to follow the above decisions unless I am of the view that they are clearly wrong. Far from the latter being the case, these decisions in my view are wholly unexceptionable. The s 499(1) power is clearly premised upon the recipient of a direction being a person or body other than the Minister. The Act does not impose such a duty on the Minister as the applicant contends for. 9 This conclusion is sufficient to dispose of the applicant's principal contentions. Both the error of law and the failure to observe required procedures grounds advanced by the applicant are premised, as I earlier observed, on Direction No 17 being binding on the Minister. A Legitimate Expectation? 10 When Mr Bukvic was notified by letter from the Minister's department of 18 May 2000 of the intention to consider cancelling his visa under s 501(2) of the Act, it was indicated to him that: "Before the Minister considers whether to cancel your visa under subsection 501(2), you are provided with an opportunity to comment. Matters to be taken into account include the following: · Your substantial criminal record and/or · Your past and present criminal conduct · Your past and present general conduct In reaching a decision whether to cancel the visa the Minister will have regard to the matters noted above and the attached Minister's Direction 17 titled "Direction under Section 499 - Visa Refusal and Cancellation under Section 501 Migration Act 1958". In preparing your comments 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." Emphasis added. 11 If this was an ordinary case of judicial review, and not one under the restricted grounds of Part 8 of the Act, it may well be that the representation contained in that letter as to what the Minister would have regard to in reaching his decision, could be relied upon as founding a "legitimate expectation" in relation to a claim based on breach of the rules of natural justice: cf Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. Such a claim is, though, not one open to an applicant under Part 8, it being expressly precluded by s 476(2)(a) of the Act. And this is so notwithstanding that the very power in question in this case - s 501(2) - on its proper construction could well be said positively to require, by implication, that the Minister accord natural justice when exercising the power: see s 501(5) (though the heading of s 501(1) and (2) is to be disregarded: Acts Interpretation Act, 1901 (Cth) s 13(3)). There is scant scope to circumvent the positive preclusion of s 476(2) by repackaging the natural justice requirement as a statutorily required procedure to be observed for the purposes of s 476(1)(a): cf Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. 12 I nonetheless refer to the natural justice issue simply for the purpose of indicating that if the Minister created the expectation that he would "have regard to" Direction No 17, his Statement of Reasons in express terms and in the considerations to which it refers indicates, in my view, that he did have such regard to the Direction as would be sufficient to satisfy that expectation for procedural fairness purposes. It is unnecessary to enlarge upon this given that it can have no actual bearing on the disposition of this application. The No Evidence Ground 13 In his Statement of Reasons of February 2001, the Minister indicated that he: "adopted a balancing process which took all relevant considerations into account whilst having due regard to the importance placed by the Government on the three primary considerations, namely the protection of the Australian community, the expectations of the Australian community and the best interests of the children." Those "primary considerations" were designated to be such in Direction No 17. In relation to the "expectations of the Australian community", the Statement of Reasons indicated that the Minister "noted paragraph 2.12 of the Direction, and found that the Australian community would expect that Mr Bukvic's visa would be cancelled". It is the applicant's contention that that finding was of a "fact … critical to the making of the decision": Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 221; but that the "fact" so found did not exist. 14 Before considering this submission I should refer to para 2.12 of the Direction. It states: "The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision-makers should have due regard to the Government's view in this respect." 15 The applicant has sought to tender evidence suggesting that a range of persons who know him in professional capacities would not have the expectation attributed by the Minister to the Australian community. I do not regard that evidence relevant to the issue raised by the "no evidence" ground. 16 For my own part, I have difficulty in regarding the Minister's finding in this respect as being based on "the existence of a particular fact" (being what the Australian community would expect in relation to the cancellation of Mr Bukvic's visa). The reason for my difficulty relates to the burden and purpose of para 2.12 itself. That provision, for present purposes, postulates (i) a standard of conduct to which a non-citizen is expected to subscribe, the standard itself being ascribed to the expectation of the Australian community; (ii) a non-citizen having been convicted of serious offences; and (iii) a judgment to be made by the decision maker as to the appropriateness of visa cancellation because the nature of the offences were such that the "Australian community would expect that the person … should be removed from Australia". 17 The provision does not require the decision maker to ascertain what the actual expectation of the Australian community would, or would be likely to, be in relation to a given case - an impossible task in any event. Against a stated standard, and having regard (a) to the character of the offences in question and (b) to a view the Government has of "community expectations" about the appropriateness of the offender being removed from Australia where offences are of a particular nature, the decision maker is required to make his or her own judgment as a matter of opinion as to whether the offences are of that nature. In making that judgment the decision maker is being asked to do no more than bring to bear his or her own knowledge and experience. The provision clearly does not envisage the gathering of evidence on the subject of the community's expectations in the given case. Rather it requires a judgment to be formed on the offences having regard to the stated criteria. This is what the Minister has done. And it is not to the point for present purposes that others within the community might strongly disagree with his judgment of the matter. His judgment not being based on a non-existent fact, I dismiss this ground of challenge. Conclusion 18 The order of the Court will be that the application be dismissed. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.