Djalic v Minister for Immigration and Multicultural and Indigenous Affairs

the issues paper 29 The Issues Paper presented to the Minister on or shortly after 31 December 2002, identified the appellant as having Yugoslavian citizenship and pointed out that he had arrived in Australia in 1970, as a five year old. 30 Under the heading 'Protection of the Australian Community' the Issues Paper addressed three matters, namely 'seriousness and nature of conduct', 'likelihood that the conduct may be repeated' and 'general deterrence'. In considering general deterrence, the Issues Paper quoted the following extract from the relevant Ministerial Direction: 'General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa'.

'The offences committed by Mr Dalic [sic] are listed at paragraphs 13 and 21. It is open for you to find that cancellation of Mr Dalic's visa would serve as a deterrence factor against others committing similar offences. The Government has a strong interest in deterring others from committing offences of this nature.' 31 A separate section of the Issues Paper dealt with 'The Best Interests of the Children'. It included the following: 'Mr Dalic [sic] stated in his submission that his children are currently residing with his mother. Upon his release Mr Dalic plans to return to his mother and be with his children. Mr Dalic also did not explain why his children are in the care of his mother and not their natural mother. It is unknown whether or not this is a temporary arrangement or whether Mr Dalic's mother has been involved in their care for an extended period. Mr Dalic stated that he sees his children regularly and that he would be part of their daily lives if he were not incarcerated. He further stated that prior to his imprisonment he was involved in their lives by taking them to the movies and sport and dance classes. He expressed concern for his children's wellbeing should his visa be cancelled as they will be left without a father. … From Mr Dalic's comments it is reasonable to conclude that Mr Dalic has a close relationship with his children. They are now in their adolescent years and would benefit from the emotional support that Mr Dalic provides. Mr Dalic has not stated whether or not his children or his defacto spouse will accompany him in the event that his visa is cancelled resulting in his removal from Australia. Should Mr Dalic's children not accompany him in the event that his visa is cancelled, his children will lose a father. Their opportunity to visit him or contact him by telephone will be limited to their financial situation. Furthermore, it is unknown whether or not his children will continue to reside with his mother or be cared for by their natural mother. Mr Dalic's children's future would remain uncertain should his visa be cancelled. Should Mr Dalic's children accompany him in the event that his visa is cancelled resulting in his removal, his children would effectively lose their support network of family and friends. They are in their adolescent years and would experience great disruption to their lives. … It is open to you to find from the information given that the cancellation of Mr Dalic's visa and his removal from Australia would have a detrimental effect on his children.' 32 Under the heading 'Other Considerations', the following appeared: 'Should Mr Dalic's visa be cancelled resulting in his removal, he would lose the support of his family. Should his defacto spouse and children not accompany him to Yugoslavia, he would effectively lose them. Furthermore, Mr Dalic may find acquisition of his native language difficult as he is now 35 years of age. This would affect his ability to obtain employment and support himself financially in the Former Yugoslavia. In consideration of the above factors, it is open for you to find that Mr Dalic would suffer significant emotional and financial hardship should his visa be cancelled resulting in his removal from Australia.'

the minister's statement of reasons 33 As we have noted, the Minister gave no reasons for his decision at the time he made it, other than to select one of the options identified in section E of the Issues Paper. The Statement of Reasons was prepared some eight months later. 34 The Minister commenced the Statement of Reasons with a qualification, as follows: 'Mr Djalic's case is one of a number of visa cancellations I have personally considered. This document sets out my best recollection of the reasons for my decision of 17 January 2003.' 35 Under the heading 'Primary Considerations', the Minister dealt with three matters, namely protection of the Australian community, expectations of the Australian community and the best interests of the children. Under the sub-heading 'Protection of the Australian community' the Minister said that he gave 'primary consideration to the protection of the Australian community, taking into account the seriousness and nature of Mr Djalic's conduct, the likelihood that such conduct might be repeated and general deterrence.' 36 The Statement of Reasons then addressed each of those matters in turn. The Minister noted that Mr Djalic's criminal record was extensive, involving a large number of offences considered as very serious under the Ministerial Direction. The Minister also noted that Mr Djalic's pattern of criminal behaviour over a period of twenty years suggested that he had not been deterred from re-offending. The Minister had thought that if Mr Djalic was unable to overcome his drug problem there was 'a risk that he would re-offend'. The Minister recorded that he had 'placed a high weight on his risk of recidivism'. 37 The Minister said this on the question of deterrence to others: '19. In considering whether the cancellation of Mr Djalic's visa would act as a deterrent to other non-citizens who might engage in similar activities, I found that cancellation in this instance may provide a deterrent effect. However, this was not a significant factor and overall, I placed little weight on this consideration.' (Emphasis added.) 38 The Statement of Reasons continued as follows: 'Expectations of Australian Community 20. I also gave primary consideration to the expectations of the Australian community. In accordance with the Government's view that is expressed in the Direction, I considered that the Australian community expects non-citizens to obey Australian laws while in Australia. 21. I noted that Mr Djalic stated that he has lived in Australia since he was a young child, and I considered that this may lead some members of the Australian community to feel some compassion for Mr Djalic should he be removed from Australia. 22. However, in view of Mr Djalic's long pattern of criminal offending and the seriousness of some of these offences, I believed that the Australian community would expect Mr Djalic's visa to be cancelled and him to be removed from Australia. I gave this consideration moderate weight. The best interests of the child 23. I gave primary consideration to the best interest of the child in line with article 3.1 of the Convention on the Rights of the Child. Mr Djalic has two children, who were aged seventeen and fourteen at the time of this decision. I considered the best interests of the child in accordance with paragraph 2.16 of the Direction. 24. Mr Djalic indicated that his children reside with his mother, and that on his release from prison, he intended to be part of their daily lives, such as take them to the movies, sports and dancing class. MR Djalic expressed a concern for his children's well-being, should he be removed from Australia. 25. Overall, there was little evidence presented as to the children's living arrangements. Mr Djalic stated that his children are currently residing with his mother, and that on his release from prison he would become involved in their day-to-day lives. Mr Djalic did not provide evidence whether his de-facto wife also resides with the children, or what the exact domestic arrangements are. Whilst there was no specific evidence in respect of this issue, I presumed for the purposes of my decision that Mr Djalic's children were Australian citizens. 26. On the basis of Mr Djalic's statements, I accepted that he and his children have a close relationship, and that the children would benefit from the emotional support that could be provided by their father. 27. In making my decision, I took into account that should Mr Djalic be removed from Australia, his children or de-facto wife may not be able, or may not wish, to accompany him. I also considered that if Mr Djalic were to return to his country of origin his family may not be able to visit him due to their financial situation. Mr Djalic's contact with his children would therefore likely to be limited to telephone and mail contact. 28. I found from the information to hand that the cancellation of Mr Djalic's visa and his removal from Australia would not be in the best interest of the children and I gave this considerable weight.' (Emphasis added.) 39 Finally, the Statement of Reasons identified other considerations taken into account by the Minister. These included the fact that the appellant had arrived in Australia at the age of five and considered himself Australian; the appellant's lack of connection with his country of origin and his inability to speak the language; and the emotional hardship that would be sustained by the appellant's family, including his de facto wife and children, if he were removed from Australia. The Minister gave these matters 'moderate weight'.

status of the statement of reasons 40 Although not the subject of argument before us, it would seem that the Issues Paper, notwithstanding that the Minister selected one of the options recorded in it, was not a notice setting out the reasons for the Minister's decision, as required by s 501G(1)(e) of the Migration Act: Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433, at 445-446 [37]-[40], per Branson J (with whom Goldberg and Allsop JJ agreed). It also appears that a statement of reasons provided by the Minister many months after the decision (as in this case) does not constitute compliance with the Minister's statutory duty: Dagli v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 298, at [69], per curiam, but compare at [68]. However, it is clear that the Minister's failure to provide reasons in compliance with s 501G(1)(e) of the Migration Act was not a jurisdictional error and therefore did not invalidate the Minister's cancellation decision: Re Minister for Immigration and Multicultural Affairs; Ex parte Palme (2003) 201 ALR 327, at 336-337 [45]-[46], per Gleeson CJ, Gummow and Heydon JJ. 41 In Dagli, the Full Court (at [64]) pointed to what their Honours said were the obvious dangers in relying upon 'any statement of reasons, produced long after a decision is taken, as accurately reflecting the matters that most influenced the decision-maker at the time the decision was made'. Their Honours also said that when Ministerial reasons are given long after a decision is taken, they should be treated 'with extreme caution' (at [69]). 42 In Dagli itself, the appellant claimed that he had been denied procedural fairness because certain matters, adverse to him, had not been brought to his attention and he had not been given an opportunity to respond to them. The trial Judge considered that, having regard to the content of the Minister's statement of reasons, he was satisfied that these matters played no role in the Minister's decision. The Full Court considered it inappropriate to rely on the statement of reasons in this way and were not prepared to conclude that the matters had not had an effect on the Minister's decision. 43 In this case, the Statement of Reasons was admitted into evidence without objection. It was common ground on the appeal that the appellant had relied at trial on the Statement of Reasons, when read in conjunction with the Issues Paper, to support his submissions. In these circumstances, it is appropriate to take account of the Statement of Reasons as the Minister's best recollection, eight months after the event, of his reasons for cancelling the Visa. Equally, it is appropriate to bear in mind the caveat expressed in Dagli and to treat the Statement of Reasons with caution when assessing the factors that influenced the Minister to make the cancellation decision.

THE SUBMISSIONS 44 The appellant did not submit that s 501(2) of the Migration Act is invalid. Rather, he contended that the discretion conferred on the Minister by s 501(2) to cancel a visa should be construed so as to exclude considerations that can be characterised as punitive in character. To do otherwise, so he argued, would offend the principle that the imposition of punishment for criminal offences is an exclusively judicial function and cannot be entrusted to the executive, a proposition he derived from Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, at 27, per Brennan, Deane and Dawson JJ. 45 Mr Jackson, who appeared for the appellant, acknowledged that Commonwealth legislation providing for cancellation of visas and deportation of persons who have been convicted of criminal offences does not infringe Chapter III of the Constitution, provided that the legislation can be said to be for the purpose of protecting the Australian community. He submitted, however, that such legislation would be invalid to the extent that it purports to authorise the decision-maker to take into account the deterrent effect of a visa cancellation and deportation on other potential offenders. This followed, so Mr Jackson argued, because deterrence is properly to be characterised as punitive in nature, rather than protective of the Australian community. Accordingly, s 501(2) of the Migration Act must be read as conferring a discretion which excludes as a permissible consideration any element of deterrence. 46 Mr Jackson adopted the same reasoning in relation to the criterion of the 'expectations of the Australian community'. To the extent that s 501(2) purports to authorise the Minister to take community expectations into account in determining whether to cancel the visa of a person convicted of a criminal offence, so he argued, it impermissibly permits the Minister to punish the offender for having committed those offences. 47 Mr Jackson further submitted that, if this construction of s 501(2) of the Migration Act was correct, the Minister had taken irrelevant considerations into account in deciding to cancel the Visa. The Statement of Reasons made it clear that the Minister had given primary consideration to the expectations of the Australian community and should be read as indicating that the Minister had given at least some weight to the deterrent effect of cancelling the Visa.

reasoning 48 The appellant's submission raises three distinct, albeit related questions: (i) What is the proper construction of s 501(2) of the Migration Act? In particular, what is the scope of the discretion conferred on the Minister to cancel a visa? (ii) Should s 501(2), so construed, be read down so as to avoid any conflict with Chapter III of the Constitution? (iii) Did the Minister take into account considerations that are impermissible on the proper construction of s 501(2)?

What Factors Did The Minister Take Into Account? 49 So far as the third of these issues is concerned, there may be a short answer to the appellant's submission, at least insofar as it depends on the Minister having taken into account the deterrent value of a decision to cancel the appellant's Visa. If the Statement of Reasons is to be accepted at face value, it would appear that the Minister attached no significant weight to the deterrent effect of cancelling the Visa. Thus even if s 501(2) of the Migration Act is to be read as the appellant submitted it should, the Minister may not have travelled beyond the permissible scope of the legislation: that is, he may not in fact have taken an irrelevant consideration (deterrence) into account in making the cancellation decision. 50 As we have explained, however, it is necessary to exercise caution in determining what effect should be given to the Statement of Reasons, having regard to the circumstances in which it was prepared. We are therefore prepared to assume, without deciding, that notwithstanding the terms of the Statement of Reasons, the Minister gave some weight to deterrence as a factor supporting the cancellation decision. 51 We should add that the Statement of Reasons leaves no doubt that the Minister did attribute some significance to his assessment of the 'expectations of the Australian community' when making the cancellation decision. The appellant has therefore established the necessary factual foundation for his argument that the Minister took into account an irrelevant consideration by allowing the expectations of the Australian community to influence his decision.

The Constitutional Position 52 Before addressing the construction of s 501(2) of the Migration Act, it is convenient to consider the scope of Parliament's powers to make laws with respect to aliens and the constraints on Parliament's power to enact legislation authorising the removal from Australia of non-citizens convicted of criminal offences.

The Aliens Power 53 Section 501(2) of the Migration Act is supported by s 51(xix) of the Constitution, which confers power on Parliament to make laws with respect to 'Naturalisation and aliens'. From the early days of Federation, the High Court has taken an expansive view of the aliens power. 54 In Robtelmes v Brenan (1906) 4 CLR 395, Griffith CJ (at 400) quoted with approval the observation of the Privy Council in Attorney-General for Canada v Cain and Gilhula [1906] AC 542, at 546: 'One of the rights preserved by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, or good government, or to its social or material interests…' Griffith CJ added that 'since the supreme power of the State may annex what conditions it pleases to the permission to enter…the permission to the alien to enter may be a conditional permission, so that as soon as the supreme power thinks that it is undesirable that the alien should continue to be within its boundaries, it may order his removal'. 55 In Chu Kheng Lim, the joint judgment of Brennan, Deane and Dawson JJ observed (at 30-31) that the High Court has consistently recognised that the aliens power includes 'not only the power to make laws providing for the expulsion or deportation of aliens by the Executive but extends to authorising the Executive to restrain an alien in custody to the extent necessary to make the deportation effective'. Their Honours cited Koon Wing Lau v Calwell (1949) 80 CLR 533 as the 'clearest example' of this principle. That case upheld the War-time Refugees Removal Act 1949, which provided for the Minister to order the deportation of aliens who had entered Australia during the period of hostilities. The Court rejected a challenge to the legislation advanced on the ground that it permitted unlimited imprisonment of such aliens. Latham CJ, with whom McTiernan and Webb JJ agreed, said (at 555-556): 'deportation legislation is a necessary element in the control of immigration into a country. "The power to deport," Barton J said in Robtelmes v Brennan [(1906) 4 CLR 395, at 400], "is the complement of the power to exclude." Deportation under legislation of this character, whether it is regarded as legislation relating to aliens or legislation relating to immigration, is not imposed as punishment for being an alien or for being an immigrant… Section 7 [of the Immigration Act 1901] does not create or purport to create a power to keep a deportee in custody for an unlimited period. The power to hold him in custody is only a power to do so pending deportation and until he is placed on board a vessel for deportation and on such a vessel and at ports at which the vessel calls. If it were shown that detention was not being used for these purposes the detention would be unauthorised and a writ of habeas corpus would provide an immediately remedy.' 56 Recently, in Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162, McHugh J summarised (at 185 [80]) the effect of the authorities concerning the scope of the aliens power, as follows: 'Under s 51(xix) of the Constitution, "Parliament has power to make laws providing for the deportation of aliens for whatever reasons it thinks fit", [Pochi v Macphee (1982) 151 CLR 101 at 106, per Gibbs CJ]. Subject to the Constitution, that power is "constant" [Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 186, per Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ] and is "limited only by the description of the subject matter" [Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 64, per McHugh J]. Thus, as long as a person falls within the description of "alien", the power of the Parliament to make laws affecting that person is unlimited unless the Constitution otherwise prohibits the making of the law [Re Patterson; Ex parte Taylor (2001) 207 CLR 391, at 429 [100], per McHugh J].' 57 Section 501(2) of the Migration Act is a law with respect to aliens and applies to any person who answers the constitutional description of an 'alien': Ex parte Te; Shaw v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 143. There is no dispute in this case that the appellant, as a non-citizen born outside Australia of non-Australian citizens, is an alien in the relevant sense: see Shaw, at 151 [32], per Gleeson, Gummow and Hayne JJ.

Chapter III Constraints 58 It is a fundamental principle of the Australian Constitution, flowing from Chapter III, that the adjudication and punishment of criminal guilt for offences against a law of the Commonwealth is exclusively within the province of courts exercising the judicial power of the Commonwealth. However, the authorities have consistently rejected suggestions that the detention of an alien for the purposes of deportation infringes that principle. In Ex Parte Walsh and Johnson; In re Yates (1925) 37 CLR 36, at 95-96, Isaacs J distinguished between deportation as a 'punishment for crime' (which Chapter III of the Constitution would require to be entrusted to a court) and deportation 'as a political precaution'. See, too, at 60-61, per Knox CJ; at 132-133, per Starke J. In O'Keefe v Calwell (1949) 77 CLR 261, Latham CJ, in a frequently cited passage, said this (at 278): 'Deportation is not necessarily punishment for an offence. The Government of a country may prevent aliens entering, or may deport aliens… Exclusion in such a case is not a punishment for any offence. Neither is deportation… The deportation of an unwanted immigrant (who could have been excluded altogether without any infringement of right) is an act of the same character: it is a measure of protection of the community from undesired infiltration and is not punishment for an offence…' 59 In Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666, a Full Court was concerned with s 12 of the Migration Act, a forerunner to s 501(2). Smithers J observed (at 668-669) that the statutory objectives underlying s 12 were 'connected with the maintenance of standards of the Australian population by deporting aliens whose deportation was seen by the Minister to be desirable in the best interests of Australia. Without doubt the statutory objectives include protecting the Australian community from persons in respect of whom it is reasonable to think that their future conduct may be detrimental to the Australian community'. Deane J, with whom Evatt J agreed, said this (at 685): 'If the slate were clean, I should have thought that there was a great deal to be said for the view that the banishment, consequent upon his conviction of a criminal offence, of one who has become an accepted member of the Australian community was an interference with personal liberty by way of punishment… If that view were correct, a question would arise as to whether a provision purporting to confer upon an executive officer of the Commonwealth a power as close to the heart of judicial power as the subjection of the individual to interference with personal liberty by way of punishment was consistent with the provisions of Chapter III of the Constitution. It has however been said, in many cases, that deportation cannot properly be regarded as punishment of an offence… The validity of legislation entrusting to executive officers and organs, decisions as to the deportation of established residents has long been accepted.' (Emphasis added.) 60 In Chu Kheng Lim, the Court upheld the constitutional validity of legislation providing for the detention of non-citizens arriving unlawfully in Australia by boat, although a majority struck down s 54R of the Migration Act which prohibited a court ordering the release of such persons. The joint judgment of Brennan, Deane and Dawson JJ (with which Mason CJ and Gaudron J relevantly agreed), addressed the application of Chapter III of the Constitution to the deportation of non-citizens. Their Honours pointed out (at 27) that: 'There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character. The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth. That function appertains exclusively to and "could not be excluded from" the judicial power of the Commonwealth. That being so, Ch III of the Constitution precludes the enactment, in purported pursuance of any of the sub-sections of s 51 of the Constitution, of any law purporting to vest any part of that function in the Commonwealth Executive. In exclusively entrusting to the courts designated by Ch III the function of the adjudgment and punishment of criminal guilt under a law of the Commonwealth, the Constitution's concern is with substance and not mere form. It would, for example, be beyond the legislative power of the Parliament to invest the Executive with an arbitrary power to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt. The reason why that is so is that, putting to one side [certain] exceptional cases to… the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.' 61 The joint judgment observed (at 28-29) that a provision purporting to authorise the detention of citizens, otherwise than by a court in the exercise of the judicial power of the Commonwealth, would be beyond the legislative competence of the Parliament and invalid. The question to be considered was whether the fact that the legislation was confined to non-citizens avoided any conflict with Chapter III of the Constitution. 62 Their Honours said (at 29) that the most important difference between a citizen and non-citizen lies 'in the vulnerability of the alien to exclusion or deportation'. The effect of this vulnerability 'is significantly to diminish the protection which Ch III of the Constitution provides, in the case of a citizen against imprisonment otherwise than pursuant to judicial process'. After referring to the broad scope of the aliens power, their Honours said this (at 32): 'It can therefore be said that the legislative power conferred by s 51(xix) of the Constitution encompasses the conferral upon the Executive of authority to detain (or to direct the detention of) an alien in custody for the purposes of expulsion or deportation. Such authority to detain an alien in custody, when conferred upon the Executive in the context and for the purposes of an executive power of deportation or expulsion, constitutes an incident of that executive power. By analogy, authority to detain an alien in custody, when conferred in the context and for the purposes of executive powers to receive, investigate and determine an application by that alien for an entry permit and (after determination) to admit or deport, constitutes an incident of those executive powers. Such limited authority to detain an alien in custody can be conferred on the Executive without infringement of Ch III's exclusive vesting of the judicial power of the Commonwealth in the courts which it designates. The reason why that is so is that, to that limited extent, authority to detain in custody is neither punitive in nature nor part of the judicial power of the Commonwealth. When conferred upon the Executive, it takes its character from the executive powers to exclude, admit and deport of which it is an incident.' (Citation omitted. Emphasis added.) 63 McHugh J observed (at 71) that the legislation under challenge did not impose a punishment or penalty 'in its ordinary operation': 'Although detention under a law of the Parliament is ordinarily characterized as punitive in character, it cannot be so characterized if the purpose of the imprisonment is to achieve some legitimate non-punitive object. Thus…imprisonment of a person who is the subject of a deportation order is not ordinarily punitive in nature because the purpose of the imprisonment is to ensure that the deportee is excluded from the community pending his or her removal from the country… But if imprisonment goes beyond what is reasonably necessary to achieve the non-punitive object, it will be regarded as punitive in character.' 64 In NAMU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 589, reliance was placed on McHugh J's observations to support a submission attacking the validity of s 196(1) of the Migration Act, which required an unlawful non-citizen to be detained pending removal or deportation. The Full Court rejected the attack. Their Honours said this (at 597): 'The factual consequences of immigration detention for the mental health of an individual detainee cannot, in our view, render s 196(1) invalid on the ground that those consequences evince an intention to detain for the purpose of punishing those who are detained. Despite the effect that detention may have on the mental health of the detained child appellants, the non-punitive purpose of detention pursuant to s 196(1) is not displaced by that effect. If a punitive purpose is to be found, it must be discovered from the legislative structure of the regime for detention rather than from the consequences of the detention on individual detainees.' 65 These authorities do not rule out the possibility that in a particular case the decision-maker intends to punish the non-citizen for his or her criminal conduct, rather than to achieve an objective contemplated by the legislation. But in order to make out such a case it is necessary to adduce evidence of the decision-maker's actual purpose: cf Luu v Minister for Immigration and Multicultural Affairs (2002) 127 FCR 24, at 36.

Summary 66 The following propositions can be derived from the authorities: 1. Section 51(xix) of the Constitution empowers Parliament to make a law providing for the deportation of aliens for whatever reason Parliament thinks fit, unless the Constitution otherwise prohibits the making of the law. 2. Under Chapter III of the Constitution, the adjudication and punishment of criminal guilt by reason of an alleged breach of a law of the Commonwealth appertains to the judicial power of the Commonwealth and cannot be entrusted to the Executive. If, therefore, Commonwealth legislation on its proper construction, purports to authorise the Executive to impose punishment for criminal conduct, the legislation, to that extent, will infringe Chapter III of the Constitution. 3. Whether legislation conferring power to cancel the visa or order the deportation of a non-citizen is punitive in character is to be determined by construction of the legislation, not by a consideration of the consequences of detention or removal of the individual. 4. Accordingly, the power to cancel a visa or order the deportation of a non-citizen is not to be regarded as punitive in character merely because exercise of the power involves interference with the liberty of the individual or imposes what the individual may see as sanctions consequential on his criminal connections. Neither can detention incidental to deportation of a non-citizen be characterised as punitive merely because it involves deprivation of liberty. 5. Legislation conferring a discretion on the Executive to cancel the visa of a non-citizen or to deport a non-citizen is not characterised as punitive if it can fairly be said to protect the Australian community. This is so even where the pre-condition that must be satisfied for the exercise of the power is the conviction of the non-citizen for a criminal offence or the imposition of a minimum period of imprisonment. 6. Nonetheless, if in a particular case the decision-maker purports to exercise a statutory power to cancel the visa of a non-citizen or to deport the non-citizen or order to punish the non-citizen and not for protection of the Australian community or some other legitimate objective, the exercise of the power may be ultra vires the statute.

Scope of Section 501(2) 67 Section 501(2) of the Migration Act confers a discretionary power on the Minister to cancel the visa of a non-citizen if the non-citizen is unable to pass the 'character test'. The discretion is unconfined in terms. As Branson J said of the power under s 200 of the Migration Act to order the deportation of a non-citizen, any limitations on the scope of the discretionary power must be derived from the subject matter, scope and purpose of the legislation: Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313, at 324 [35], citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, at 39-40, per Mason J; see, too, Luu v Minister for Immigration and Multicultural Affairs, 51-52, per curiam. Like s 200, s 501(2) confers a discretion on the Minister, indicating that the discretion can be exercised taking into account 'broader policy considerations': Peko-Wallsend, at 42. 68 The authorities recognise that the protection of the Australian community lies at the heart of the discretionary power to cancel the visa of, or deport a non-citizen convicted of serious criminal offences. So much is clear from the observations in O'Keefe v Calwell and Minister v Pochi, to which reference has been made. Consistently with this view, in Luu v Minister, the Full Court accepted that the protection of the Australian community is a relevant consideration to the decision of the Minister whether to detain, or maintain the detention of a deportee. 69 Recently, the Full Court in Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65, expressed the view that Parliament had a more specific intention in mind when enacting s 501. Their Honours quoted from Ministerial Direction No 21 (the same one considered in the Issues Paper), as follows (at [104]): '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. … 2. The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community.' 70 Their Honours observed (at [105]) that the 'definition of a person [not] passing the character test in s 501(6) shows that Parliament intended that persons who have been convicted of relatively serious crime; associate with criminals; have a history including an immediate history of criminal conduct or general conduct indicating bad character; are a significant risk of engaging in criminal conduct or undesirable conduct (s 501(6)(d)), should not be permitted to travel to or remain in Australia. Shortly put, persons who have committed or are likely to commit criminal or other like conduct should not be permitted to travel to or remain in Australia. Because the purpose is to exclude those persons, the matters that are relevant to the exercise of the Minister's discretion will include any fact or circumstance which would suggest that a person of otherwise bad character (as it is defined in the Act) should be allowed to travel to or remain in Australia'. 71 The Court's reference to Ministerial Direction No 21 suggests that their Honours considered that the Direction accurately (or at least not inaccurately) summarises both the general object of the legislation and the principal purpose of the power to cancel a visa conferred by s 501. The Court's analysis of the Parliamentary intention underlying s 501 reinforces the view that the section aims to protect the Australian community from those who have committed or might commit serious criminal offences. It perhaps unduly limits the scope of the discretion conferred by s 501 to attribute an intention to Parliament that persons convicted of criminal offences should not be permitted to remain in Australia unless they persuade the Minister otherwise (if this is what the Court in Akpata meant). Nonetheless, as their Honours indicate, the matters identified in s 501(6) show that the legislation is designed to protect the community from criminal or other undesirable conduct and to permit the Minister to give effect to what might loosely be described as community expectations that perpetrators of such conduct, should not be permitted to remain in Australia. 72 It follows from what we have said that s 501(2) of the Migration Act, on its proper construction, permits the Minister to take into account, in the exercise of his or her discretion, the effect cancellation of the non-citizen's visa will have in protecting the Australian community. Similarly, s 501(2) is sufficiently broad to allow the Minister to take into account his or her assessment of the expectations of the Australian community as to whether or not a non-citizen who commits serious criminal offences should be permitted to remain in the country.

Should Section 501(2) Be Read Down? 73 The authorities to which we have referred demonstrate that s 501(2) of the Migration Act does not collide with Chapter III of the Constitution unless, on its true construction, it authorises the Executive to impose punishment for criminal conduct. The authorities also demonstrate that insofar as s 501(2) permits the Minister to take into account the protection of the Australian community in making a cancellation decision, the provision cannot be characterised as punitive in the relevant sense. It follows that s 501(2) of the Migration Act, insofar as it empowers the Minister to take into account considerations relevant to the protection of the Australian community, does not infringe Chapter III of the Constitution. 74 Similarly, the authorities indicate that, insofar as s 501(2) permits the Minister to take account of community expectations as to whether non-citizens who commit serious offences should not be permitted to remain in the country, it does not contravene Chapter III of the Constitution. To take account of community expectations is to give effect to the Minister's conception of the public interest. Sometimes this consideration may work in favour of the non-citizen. In the present case, for example, the Minister said that he took into account that some members of the Australian community would feel compassion for the appellant, since he had lived in Australia as a young child. Often, however, the Minister's assessment of community expectations will work against the non-citizen. This will be so, for example, where the Minister gives effect to his or her assessment of 'community expectations' in determining that the non-citizen has engaged in behaviour that is unacceptable to the Australian community. To take account of such a consideration, however, is not to impose punishment for a criminal offence. There is therefore no occasion to read down s 501(2) to exclude consideration of community expectations from the scope of the Ministerial discretion to cancel the visa of a non-citizen.

Did The Minister Take Into Account Irrelevant Considerations? 75 The appellant's argument assumed, rather than demonstrated, that a Ministerial decision that took into account the deterrent effect of a visa cancellation amounted, in effect, to the imposition of punishment by reason of the non-citizen's criminal conduct. The fundamental difficulty with this assumption is that deterrence is a matter that is squarely concerned with the protection of the Australian community. Different views may be held about how far a cancellation decision is likely to have a deterrent effect on other potential (non-citizen) offenders. But the very point of taking account of general deterrence as a factor in making a cancellation decision is to enhance the safety and well-being of the Australian community by discouraging non-citizens from engaging in criminal conduct. It is treated in exactly this way in the Ministerial Direction. The mere fact that deterrence also happens to be an element that courts take into account in sentencing offenders does not convert a cancellation decision under s 501(2) from a protective to a punitive measure. If, as we have assumed, the Minister's decision was based in part on the deterrent effect of cancelling the Visa, he acted within the scope of the discretion validly conferred by s 501(2) and did not take into account an irrelevant consideration. 76 The Magistrate in the present case referred to two decisions of the Administrative Appeals Tribunal as supporting the view that s 501(2) does not authorise the cancellation of a visa for the purposes of deterring other non-citizens from criminal conduct. In Re Sergi and Minister for Immigration and Ethnic Affairs, Davies J considered whether to recommend that the Minister revoke a deportation order made under the then s 12 of the Migration Act against a non-citizen convicted of serious drug offences. His Honour commented (at 231) that a deportation order made for the sole or substantial purpose of deterring others 'would serve as a punishment of the criminal'. However, Davies J specifically acknowledged (at 230) that deterrence of others was a factor that the Minister could properly take into account in making a deportation order. It is not necessary to determine whether Davies J's comment is correct, since there is no suggestion that the cancellation decision in the present case was made for the sole or substantial purpose of deterring others. In Re Gungor and Minister for Immigration and Ethnic Affairs, Smithers J (at 232) did no more than observe that to deport a person who represents no threat to the Australian community in order to deter others from crime could be regarded as 'double punishment'. 77 For the reasons we have given, insofar as the Minster's decision was based on his assessment of community expectations that non-citizens will obey the law while in Australia, he did not take account of an irrelevant consideration and did not act beyond the scope of the discretion conferred by s 501(2).

GROUND 3: the interests of the children 78 The appellant submitted that the Minister had failed to give 'proper, genuine and realistic consideration' to the interests of the appellant's children. It is not clear whether the submission proceeded on the assumption that a failure to give proper, genuine and realistic consideration to the merits of an application is, of itself, a jurisdictional error, or whether the submission was that the Minister was bound to take into account the best interests of the children and, although purporting to do so, had not in truth considered their best interests. 79 Whether the former assumption is correct is an unresolved question: see Braganza v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 170, at [37] and authorities cited there. The latter submission presents a factual issue as to whether the Minister did in fact give consideration to the interests of the children. If the Minister proposed to make a decision on the basis that the best interests of the children were not a primary consideration, on the current state of authorities he would have had to give the appellant notice of the proposal and an opportunity to argue against taking that course: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608; Perez v Minister for Immigration and Multicultural Affairs (2002) 119 FCR 454, at 471-472, per Allsop J; cf Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502, at 526-527 [97]-[102], per McHugh and Gummow JJ; at 531 [122], per Hayne J; at 538-539 [147], per Callinan J. 80 The appellant's counsel linked this submission to a contention that the Minister was obliged, on his own initiative, to make further inquiries about the position of the children. Counsel relied on the observations of Toohey J in Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167, a case under the Administrative Decisions (Judicial Review) Act 1977 (Cth). There his Honour said (at 178-179): 'As a broad proposition, I do not think that the Act imposes an obligation on a decision-maker to initiate inquiries… But much will depend upon the nature of the material before the decision-maker, the importance of the decision to be made and its consequences for the person to whom the decision relates. In this regard I confine my comments to a decision that a prohibited non-citizen be deported. In such a case it may be that the material placed before the Minister or his delegate contains some obvious omission or obscurity that needs to be resolved before a decision is made. This is more likely to be the case where the person concerned has not had the benefit of any advice.' Counsel submitted that the Minister should have realised that the information provided by the appellant in the questionnaire was inadequate and therefore should have made further inquiries, for example to ascertain why the children were living with the appellant's mother and what role their own mother was playing in their care. There was no evidence as to what information these further inquiries might have yielded or how they might have assisted the appellant's case. 81 Toohey J's comments in Videto must be understood in their context. His Honour was not considering the scope of jurisdictional error for the purposes of s 39B of the Judiciary Act. Moreover, he was concerned with case where the Department had failed to forward information to the delegate (the decision-maker) and had dissuaded Mr Videto from putting forward relevant material on the basis that it had no bearing on the decision. 82 In Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, McHugh J said this (at 321): 'In an number of cases, the Federal Court has found that a failure to make further inquiries constituted an improper exercise of the power granted by the statute or a failure to take into account a relevant consideration in exercising that power. In those cases, the Federal Court has held that further inquiries should have been made because (1) a specific matter was raised by an applicant or was within the knowledge of the Minister and that matter could not be properly considered without further inquiry, (2) the information before the Minister was not up to date or (3) the absence of information before the Minister resulted from the Minister's officers misleading the applicant. This case does not fit into any of those categories.' (Citations omitted.) Although McHugh J was in dissent in that case, there is nothing in this passage inconsistent with the reasoning of the majority of the Court: see at 289-290, per Mason CJ and Deane J; at 302, per Toohey J; cf at 304, per Gaudron J. See also Hourn v Farm Plan Pty Ltd [2003] FCA 1122, at [44]-[53], per RD Nicholson J. 83 In our opinion, there is no basis for the submission that the Minister was bound to make further inquiries concerning the position of the children. It must be remembered that there is now no complaint that the Minister denied the appellant procedural fairness. Although the information provided by the appellant concerning the children was not particularly detailed, it explained their situation and made out a case that he had a close relationship with his children and that the children would suffer serious emotional loss if he were to be deported from Australia. The appellant had an opportunity to provide more detailed information if he wished, but he did not avail himself of that opportunity. Moreover, the case does not come within any of the three categories identified by McHugh J in Teoh. Nor has any principled basis been suggested for concluding that the Minister should have sought further information about the children before proceeding to a decision. 84 We also think that there is no substance in the submission that the Minister did not give 'proper, genuine and realistic consideration' to the best interests of the children. The Issues Paper explicitly identified the best interests of the children as a primary consideration to be taken into account. It said that it was reasonable to conclude that the appellant had a close relationship with his children and that they would benefit from his emotional support. The Issues Paper also accepted that if the children did not accompany the appellant they would lose a father, while if they did accompany him, they would experience great disruption to their lives. 85 The Statement of Reasons recorded that the Minister gave primary consideration to the best interests of the children and gave 'considerable weight' to the adverse effects on them if the Visa was cancelled. The Ministerial Direction, as the Statement of Reasons noted, provided that the best interests of the children were to be given primary consideration. There is no evidence to suggest that the Statement of Reasons did not accurately record the Minister's approach to the interests of the children. On the contrary, the Statement of Reasons is consistent with the Issues Paper and the Ministerial Direction. Accordingly, while the Statement of Reasons should be assessed with due caution, there is no reason, in the circumstances of this case, to doubt that it accurately recorded the Minister's reasoning on this issue. 86 The foundation for the appellant's submission is therefore wanting and the submission must be rejected.

GROUND 4: the appellant's right to return to the former yugoslavia 87 The appellant submitted that the Minister had failed to take account of a relevant consideration, namely whether the appellant could be repatriated to any part of the former Yugoslavia. This was a relevant consideration, however, only if s 501(2) of the Migration Act, in its proper construction, compelled the Minister to take it into account. No cogent reason was put forward to construe s 501(2), which confers a power to cancel a visa, to require the Minister to consider whether the appellant could actually be removed to the former Yugoslavia. Once the appellant's visa was cancelled, he became liable to detention and removal from Australia. There was no evidence that there would be in fact be any difficulty in removing the appellant to Serbia or some other part of the former Yugoslavia. If such a difficulty is encountered it may give rise to other issues. But there is nothing in the legislative structure to indicate that a potential difficulty in removing a non-citizen must be taken into account by the Minister when deciding whether or not to cancel the non-citizen's visa. 88 This ground of appeal must fail.

conclusion 89 None of the grounds put forward by the appellant succeeds. The appropriate orders are to grant leave to the appellant to file the amended notice of appeal, other than ground 2 (the new procedural fairness ground), but to dismiss the appeal, with costs. I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, Sackville and Stone JJ.

Solicitor for the Appellant: Christopher Levingston & Associates

Solicitor for the Respondent: Australian Government Solicitor