Evans v Minister for Immigration & Multicultural & Indigenous Affairs

20 Mr Evans then sought to quash the Tribunal's decision by order of this Court. As the decision of the AAT was a privative clause decision as defined in s 474(2) of the Act, the Court was confined to determining whether there was jurisdictional error on the part of the Tribunal: Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476. 21 At first instance, two jurisdictional errors were identified by Heerey J as being asserted on behalf of Mr Evans. The first was that the Tribunal's decision was so unreasonable that no reasonable decision-maker could have made it, so as to indicate (as we understood it) that the Tribunal had not correctly considered the matters which it was required to consider. That general issue was not pressed on this appeal and need not be further considered. The second was that the Tribunal had committed jurisdictional error by failing to take into account that the underlying cause of Mr Evans' mental condition at the time of the offence, described as a fear of lymphoma, no longer existed, and that the fact that the underlying cause had dissipated was relevant when considering whether the risk of Mr Evans re-offending was substantial. In submissions on this appeal, senior counsel for Mr Evans submitted that the learned primary judge had misapprehended the nature of the second contention, which was said to have been that the Tribunal had failed to consider at all the mental state of Mr Evans at the time of the commission of the offence, and so must have failed to consider properly the question of the risk of him re-offending. 22 However those matters were expressed, Heerey J was not satisfied that there was jurisdictional error on the part of the Tribunal. His Honour dismissed the application.

THE APPEAL 23 There were two grounds of appeal argued. The first was that the Tribunal had committed jurisdictional error by not considering Mr Evans' mental state at the time he committed the offence, and that the failure to do so rendered the Tribunal's decision unreasonable. It was said that a decision made without such a finding on that issue could not be one supported by logical and rational grounds. Reliance was placed upon Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 and Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 198 ALR 59 respectively. Consequently, it was argued, the learned primary judge must himself have fallen into error by not discerning that jurisdictional error. 24 The second ground of appeal was one permitted by leave, without opposition from the Minister. It was not argued at first instance. It was that the Tribunal had failed to hold that the Minister's power to cancel Mr Evans' visa on character grounds under s 501 of the Act was unavailable in the case of the criminal conduct in Australia by Mr Evans, because his period of residence in Australia precludes the application to him of Div 9 of Pt 2 of the Act, which provides for the deportation of non-citizens in certain circumstances.

THE FIRST GROUND OF APPEAL 25 The first ground of appeal was described as "the mental state issue". On the evidence before the Tribunal, Mr Evans at the time of the offence suffered depression re-active to a provisional diagnosis of a serious and potentially lethal malignancy involving lymph node tissue; and after his arrest that provisional diagnosis was found to be erroneous and Mr Evans' diagnosis became sarcoidosis, a non-lethal connective tissue disease. The Tribunal was said to have committed jurisdictional error by failing to take into account Mr Evans' mental state at the time of the offence when considering whether there was a real and substantial risk of Mr Evans re-offending upon his release. It was argued that Mr Evans' mental state as described would not persist as he no longer believed he suffered terminal lymphoma, so the risk of him re-offending was clearly only slight. The jurisdictional error was described as the Tribunal's decision, in that respect, being unreasonable and not supported by logical and rational grounds. 26 The learned primary judge referred to the claim that the Tribunal had failed to take into account that the underlying cause of Mr Evans' mental condition no longer existed. His Honour gave two answers. First, he said that the Tribunal was not bound to take that consideration into effect, having regard to the text of the Act or by implication from its subject matter, scope or purpose: Peko-Wallsend Ltd at 39-41. Secondly, his Honour said that the Tribunal had regard to Dr Sale's report and so must have had regard to Mr Evans' mental state at the time of the offence. As his Honour pointed out, it was an over-simplification, if not a distortion, to impute to Dr Sale the view that (i) all Mr Evans' criminal behaviour was due to his fear of lymphoma, (ii) it is now established he does not have lymphoma, (iii) ergo there is now no risk of further criminal behaviour, and in particular, towards his wife. 27 As to the first ground of challenge, we respectfully agree with the learned primary judge. The report of Dr Sale, to which the Tribunal referred on two separate occasions in its reasons, indicates that the Tribunal was aware of that document. It cannot be said in the circumstances that the Tribunal did not have regard to the contents of that report, including its contents concerning the mental state of Mr Evans at the time of the offence. 28 In addition, as Heerey J said, whilst the provisional diagnosis of lymphoma may have contributed to Mr Evans' mental state at the time of the offence (a mental state which Dr Sale described as being "at a crisis", Dr Sale's report does not indicate that the removal of the threat of death from lymphoma meant that Mr Evans would be unlikely to re-offend. 29 Dr Sale's report described Mr Evans' mental state at the time of the offence as being the consequence of his increasing health problems rendering him effectively an invalid, of his drinking heavily, of him having become impotent, of him resenting his wife's better health and ability to participate in work, of his low self-esteem, of him harbouring fears about his wife's fidelity, and in response to those circumstances, of Mr Evans suffering depression. It also referred to Mr Evans shortly before the offence having been given information that caused him to fear that he had developed a lethal illness, lymphoma. That report also suggested that Mr Evans' continued assertion that the incident was an accident caused by his wife's seizing of the barrel of the rifle may be one he genuinely believes, by reason of his mental illness, or mental condition, and that he has maintained that belief despite the fact he is now more composed and no longer faces death by lymphoma because it is "one which he will be better able to live with". Consequently, even assuming in Mr Evans' favour (and contrary to our conclusion) that the Tribunal did not consider his mental state at the time of the offence, Mr Sale's report does not provide any sound foundation for a conclusion that Mr Evans is unlikely to engage in further similar conduct. Indeed, the Tribunal identified a number of circumstances by reason of which it concluded to the contrary. The Tribunal was entitled to place such weight upon Dr Sale's report, and the matters to which it referred, as it considered appropriate.

30 In our judgment, the finding of the Tribunal about the risk of Mr Evans re-offending upon his release was neither irrational, nor so unreasonable that no reasonable person could have arrived at that conclusion. The contention, in our view, simply reflects a strong disagreement with the process of reasoning of the Tribunal on an issue of fact: see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626. 31 Accordingly, we have reached the conclusion that the first ground of appeal must therefore fail.

the second ground of appeal 32 The second ground of appeal can be shortly dealt with. Senior counsel for Mr Evans accepted that it would stand or fall with the decision of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 (Nystrom), if that decision were delivered before the appeal was finalised. At the time of the hearing, that decision had not been delivered. The decision was given on 8 November 2006. 33 The argument was that the delegate of the Minister, and then the Tribunal, was not empowered to cancel Mr Evans' absorbed person visa under s 501 in the case of criminal conduct in Australia, because his period of residence in Australia, by reason of which he became entitled to his absorbed person visa, precluded the application to him of Div 9 of Pt 2 of the Act. Division 9 of Pt 2 concerns deportation. 34 Relevantly, ss 200 and 201 provide: '200 Deportation of certain non-citizens The Minister may order the deportation of a non-citizen to whom this Division applies. 201 Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes 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) when the offence was committed the person was a non-citizen who: (i) had been in Australia as a permanent resident: (A) for a period of less than 10 years; or (B) for periods that, when added together, total less than 10 years; or (ii) … (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; section 200 applies to the person.' 35 Those provisions were introduced into the Act by the Migration Amendment Act 1983 (Cth). Section 201 has not since been materially amended (except by its renumbering by the Migration Legislation Amendment Act 1994 (Cth). It was argued that ss 200 and 201 reflect a legislative policy that certain persons (including, in the circumstances, Mr Evans) are protected from exclusion or cancellation of visa by reason of criminal conduct after they have been in Australia for a specified and lengthy period of time. Mr Evans falls within those excluded from the operation of s 200 because he was a permanent resident as defined in s 204(2) and has been in Australia for more than 10 years at the time of the offence. Hence, it was argued, the cancellation of his visa provided for in s 501, first introduced by the Migration (Offences and Undesirable Persons) Amendment Act 1992 (Cth), should be read so as not to have been intended to disturb the status of persons such as Mr Evans who were covered by the shield of time provided in s 201. 36 That contention was clearly rejected by the High Court in Nystrom. It concluded that s 501(2) was not subservient to ss 200 and 201 in circumstances such as those of Mr Evans, and that s 501(2) was available as an independent source of power to cancel a visa, including an absorbed person visa such as that held by a person in Mr Evans' circumstances.

CONCLUSION 37 For those reasons, the appeal must be dismissed. We consider that the appellant should pay to the first respondent costs of the appeal. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North and Mansfield.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

EMMETT J 38 The appellant, Michael John Evans, is a non-citizen within the meaning of the Migration Act 1958 (Cth) ('the Act'). Until 11 August 2005, Mr Evans was the holder of an absorbed person visa under the Act. On that day, the first respondent, the Minister for Immigration and Multicultural Affairs ('the Minister'), cancelled Mr Evan's visa. Mr Evans sought review of the Minister's decision by the second respondent, the Administrative Appeals Tribunal ('the Tribunal'). On 21 October 2005, the Tribunal affirmed the Minister's decision. Mr Evans then appealed to the Federal Court of Australia pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). On 28 March 2006, a judge of the Court dismissed the appeal with costs. Mr Evans has now appealed to the Full Court from the orders of the primary judge.

STATUTORY FRAMEWORK 39 Section 29(1) of the Act provides that the Minister may grant a non-citizen permission to do either or both of: a) travel to and enter Australia; and b) remain in Australia. Such permission is to be known as a visa. 40 Under s 13 of the Act, a non-citizen in Australia who holds a visa that is in effect is a lawful non-citizen. Under s 14, a non-citizen in Australia who is not a lawful non-citizen is an unlawful non-citizen. Under s 15, if a visa is cancelled, its former holder, if in Australia, becomes, on the cancellation, an unlawful non-citizen unless, immediately after the cancellation, the former holder holds another visa that is in effect. 41 Section 34(1) of the Act provides that there is a class of permanent visas to remain in, but not re-enter, Australia, to be known as absorbed person visas. Under s 34(2), a non-citizen in Australia is taken to have been granted an absorbed person visa on 1 September 1994, if the person: a) was in Australia on 2 April 1984; b) had ceased to be an immigrant before that date; c) has not left Australia on or after that date; and d) immediately before 1 September 1994 was not a person to whom s 20 of the Act, as then in force, applied. The Minister accepts that those four prerequisites were satisfied in respect of Mr Evans. 42 Under s 501(2) of the Act, 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. Under s 501(6)(a), a person does not pass the character test if the person has a substantial criminal record, as defined by s 501(7). Under s 501(7), a person has a substantial criminal record, relevantly, if the person has been sentenced to a term of imprisonment of twelve months or more. 43 Under s 200 of the Act, the Minister may order the deportation of a non-citizen to whom Division 9 of the Act applies. By the operation of s 201, s 200 applies to a person who is a non-citizen where, relevantly: a) the person has been convicted in Australia of an offence; b) when the offence was committed, the person had been in Australia as a permanent resident for a period of less than ten 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. Section 204(2) provides that, for the purposes of s 201, permanent resident means, relevantly, a person whose continued presence in Australia is not subject to any limitations as to time imposed by law. The Minister accepts that Mr Evans is a permanent resident for the purposes of s 201. 44 Under s 206(1), where the Minister has made an order for the deportation of a person, that person shall, unless the Minister revokes the order, be deported accordingly. Under s 82(4), a visa held by such a person ceases to be effective upon the person's departure from Australia following a deportation order. Until the deportation order is executed, however, such a person continues to be a lawful non-citizen. 45 Section 189 of the Act provides that, if an officer knows or reasonably suspects that a person in Australia is an unlawful non-citizen, the officer must the person. Under s 198, subject to exceptions not presently relevant, an officer must remove an unlawful non-citizen as soon as reasonably practicable. Section 253(1) provides that, where an order for the deportation of a person is in force, an officer may, without warrant, detain a person whom the officer reasonably supposes to be that person. A person so detained may be kept in immigration detention or in detention as a deportee in accordance with s 253(8). Under s 253(8) a deportee may be kept in immigration detention or such detention as the Minister or the Secretary directs: a) pending deportation, until he or she is placed on board a vessel for deportation; b) at any port or place in Australia at which the vessel calls after he or she has been placed on board; or c) on board the vessel until its departure from its last port or place of call in Australia.

THE TRIBUNAL'S DECISION 46 Mr Evans was born in the United Kingdom in 1942 and came to Australia in August 1977. On 30 November 1985, Mr Evans married Anne Elizabeth Flowers ('Mrs Flowers'). On 9 May 2003, he attempted to murder her by shooting her in the stomach. He was remanded in custody. On 3 December 2003, he was convicted by a jury of attempted murder and sentenced to four and a half years imprisonment with a non-parole period of two and a quarter years. 47 Thus, Mr Evans has a substantial criminal record within the meaning of s 501(7) of the Act. Accordingly, it was open for the Tribunal to suspect that Mr Evans does not pass the character test and it was open on the material before the Tribunal to conclude that Mr Evans did not satisfy the Tribunal that he passes the character test. The power to cancel Mr Evans's absorbed person visa under s 501(2) was therefore activated. 48 Nevertheless, the power is a discretionary one. Pursuant to s 499 of the Act, the Minister has given a Direction to provide guidance for decision makers in making decisions to cancel a visa under s 501 of the Act. Under the Direction, a decision maker is required to adopt a balancing exercise that takes into account all relevant considerations. One of the primary considerations to be taken into account is the protection of the Australian community and its members. One of the factors relevant to an assessment of the level of risk to the community, from the continued stay of a non-citizen who does not satisfy the character test, is the likelihood that criminal conduct may be repeated. 49 The material before the Tribunal included a report dated 31 October 2003, made to the Legal Aid Commission of Tasmania by Dr Ian Sale, a psychiatrist. Dr Sale interviewed Mr Evans when Mr Evans was on remand. He was given background information consisting of a statutory declaration made by Mrs Flowers and a record of interview with Mr Evans when he was first arrested. Dr Sale's report was put before the sentencing judge following the conviction of Mr Evans for the attempted murder of his wife. 50 In its reasons, the Tribunal referred to evidence given by Mr Evans at a hearing before the Tribunal. The Tribunal considered that that evidence demonstrated that Mr Evans still fails to acknowledge or accept the criminality of his conduct. The Tribunal found that Mr Evans was either lying about the relevant incident or, possibly, as suggested by Dr Sale in his report, to have deluded himself as to what actually happened. The Tribunal was much more inclined to the first alternative. Clearly, however, the Tribunal had regard to Dr Sale's report in reaching that conclusion. 51 The Tribunal concluded that the criminal offence committed by Mr Evans was very serious indeed, in so far as he intentionally shot his wife and avoided her vital organs only by chance. The Tribunal considered that Mr Evans's acknowledgment in evidence, that the incident should never have happened and that it was his responsibility, did not amount to an acknowledgment of an intent to kill or a meaningful expression of remorse for his criminal conduct. At no time in his evidence did Mr Evans deviate from his claim that the shooting of his wife was accidental. 52 The Tribunal observed that the judge who sentenced Mr Evans described his offence as very serious. However, the Tribunal expressed surprise that the sentencing judge preceded that comment with an observation that the likelihood of Mr Evans's re-offending was 'slight'. The Tribunal said that it could see no evidentiary support for such an observation in the evidence of Dr Sale. Again, it is clear that the Tribunal had express regard to the report of Dr Sale in considering whether or not there was a likelihood that Mr Evans would re-offend. 53 The Tribunal then dealt with the evidence given by Mr Evans that, upon release from prison, he had no intention of making contact with his wife. The Tribunal had regard to evidence that it considered tended to establish a determined and violent disposition on the part of Mr Evans. The Tribunal found that it was plain that Mr Evans had consumed large amounts of liquor on a regular basis for many years before his offence, and the Tribunal had little confidence that he would moderate his drinking patterns when he was released from prison. 54 The Tribunal observed that there was no obvious motive for Mr Evans's deciding to kill his wife and that it was likely that he had become self absorbed, emotive and vengeful. On the evidence before the Tribunal, the Tribunal was unable to conclude that the risk of Mr Evans attempting to inflict further harm on his wife, when discharged from prison, was slight or non-existent. On the contrary, the Tribunal considered that such a risk was real and substantial. The Tribunal referred to a pre-parole report, which suggested that Mr Evans is in the high range in relation to the risk of re-offending. The Tribunal also referred to the fact that Mr Evans had been unable to show any realistic support mechanism that would be available to him within the Australian community when he is discharged.

THE ISSUES 55 Mr Evans raises two grounds in his appeal. The second ground was raised pursuant to leave granted by the Full Court, since it was not raised before the primary judge. 56 The first ground is that the Tribunal committed jurisdictional error in not considering Mr Evans's mental state at the time he committed the relevant criminal offence. 57 The second ground is that, having regard to the provisions of s 201, as explained by s 204, s 501 should be construed such that it does not extend to the cancellation of a visa held by a non-citizen who had been in Australia as a permanent resident for ten years or more.

Failure to consider mental state 58 In essence, Mr Evans contends that Dr Sale's report raised, as a possible basis for concluding that the visa should not be cancelled, the proposition that his mental state, at the time of committing the offence, was affected by depression, reactive to a provisional diagnosis of a serious and potentially lethal malignancy, a diagnosis that was rejected after the offence had been committed. The argument is that, once Mr Evans overcame the depression created by the possibility of a fatal disease, which in some way contributed to his committing the offence, he would be unlikely to re-offend. Mr Evans says that the Tribunal failed to have regard to that possibility and that, while the Tribunal was not asked to consider that possibility, that failure constituted jurisdictional error. 59 The observations, findings and conclusions of the Tribunal that are summarised above indicate that the Tribunal clearly had regard to the question of whether there was a likelihood that Mr Evans would re-offend. The Tribunal expressly had regard to the report of Dr Sale in reaching that conclusion. It cannot be said that the Tribunal failed to have regard to a relevant integer thrown up by the material before it. 60 In any event, it is difficult to see how Dr Sale's report suggests that any change in Mr Evans's mental health that occurred when he was diagnosed, after his arrest, as not having a potentially fatal disease, was relevant to the risk of his re-offending. The most that can be said of Dr Sale's report is that it contains the following material: 'Mr Evans was aware of this sinister possibility, and he knew if this diagnosis was confirmed he might be referred for radiotherapy. He was apprehensive about confirming this diagnosis, and this is a significant aspect of his mindset at the time of the incident for which he is charged. Since being in custody he has undergone further investigations, including a biopsy and a diagnosis [of a disease] …not malignant and generally not lethal … Turning to his mental state at the time of the incident… he was depressed, … and had harboured thoughts of self-harm. Matters reached a crisis when, in a further health development, he was given information that caused him to fear he had developed a lethal illness. … Your client will likely instruct that this was an accident caused by his wife seizing the barrel of the rifle. This is a version he may now genuinely believe. As outlined earlier, his memory for what happened is likely to be flawed and patchy. His current version of the events, now that he is more composed and no longer facing death…, is one which he will be better able to live with.' 61 I do not see in those observations by Dr Sale any suggestion that Mr Evans's fear that he may have a lethal disease contributed to his criminal action to such an extent that, upon finding that he did not have a lethal disease, his mental attitude would be sufficiently different that he would not have committed the offence. There was no jurisdictional error on the part of the Tribunal in failing to give further consideration to such a possibility.

Power under section 501 62 In essence, Mr Evans contended that there is no distinction, in substance, between removal, following the cancellation of a visa under s 501, and execution of a deportation order made under s 200. Exclusion from Australia by reason of conviction for general criminal offences resulting in a substantial term of imprisonment is the subject matter of ss 200 and 201, and removal pursuant to cancellation of a visa under s 501 is not permitted by reason only of conviction for general criminal offences resulting in a substantial term of imprisonment. 63 Parliament should not be presumed to have intended to overthrow fundamental principles, infringe rights or depart from the general system of law without expressing its intention with irresistible clearness. Mr Evans contends that s 201 contains specific statutory protection from deportation, for a person who has been a permanent resident for 10 years or more. He says that that protection was conferred by amendments made to the Act in 1984 and cannot be impliedly repealed by the subsequent conferral of an additional and general method of exclusion, as found in ss 501 and 198. 64 Sections 200 and 201 relate to deportation only on the ground that a non-citizen has been convicted of 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. On the other hand, s 501 is concerned with the general question of whether a person passes the character test. One aspect of the character test is whether the person has a substantial criminal record, a term defined in language similar to that referred to in s 201. However, s 501 covers many more aspects that do not depend upon a substantial criminal record. 65 Exclusion from Australia, by reason of failure of the character test, through cancellation of a visa and then the operation of s 198, is the subject matter of s 501. Mr Evans says that, having regard to the restriction in s 201, which he says Parliament clearly intended to constitute a substantive protection, the amendments to the Act in 1992 and 1998, to confer the power contained in s 501, should not be construed as effecting an implied repeal of that protection. He says that those amendments use only general words and the Parliament neither debated nor expressly repealed the protection that it first afforded by amendments made in 1984. 66 The power conferred by s 501 is certainly wider than the power conferred by ss 200 and 201. Nevertheless, the powers are different. The fact that the two powers overlap in some factual situations does not mean that a limitation on the availability of one applies as a limitation upon the other. The circumstance that powers arising under separate sources might be exercised in respect of the same set of facts does not affect the construction of either of the statutory provisions - Minister for Immigration & Multicultural Affairs v Gunner (1998) 84 FCR 400 at 408, Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at [85] and [130]. 67 In any event, the arguments advanced on behalf of Mr Evans concerning the interrelationship between ss 200 and 201, on the one hand, and s 501, on the other, are based on a misconception that the effect of the amendments in 1984 was to confer a right upon Mr Evans. The effect of ss 200 and 201 was to confer on the Minister the power to make a deportation order. The Act deals with the consequences of making such an order. There were restrictions imposed on the exercise of that power to the extent that the class of persons in respect of whom a deportation order could be made was limited to those who had not been permanent residents for ten years or more. Mr Evans could not have been the subject of a deportation order under s 200 after he had been a permanent resident for ten years. However, the Minister has not purported to make a deportation order. Rather, the Minister has exercised a different power, albeit one conferred at a time later than the time when the limited power under s 200 was conferred. 68 The power to cancel Mr Evans's absorbed person visa, and thereby render him liable to removal under s 198, was created prior to the commission of the relevant offence. As a matter of logic, s 200 and s 201 conferred no right on Mr Evans. The most that can be said is that, in their terms, the power conferred on the Minister was restricted such that it could not be exercised in relation to Mr Evans. 69 There is no basis in the language of the Act for reading into s 501 a restriction in terms of s 201 that simply does not appear in s 501 (see Minister for Immigration and Multicultural Affairs v Nystrom [2006] HCA 50). It is clear that, when s 501 was enacted in its present terms, it was intended to create powers to cancel visas in the circumstances specified, subject to the safeguards that are there provided. There is no basis for saying that s 501 does not mean what it says in explicit terms. The second ground should be rejected.

CONCLUSION 70 I do not consider that either of the grounds has been established. The appeal should be dismissed with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate: Dated: 15 December 2006 Counsel for the Appellant: S Estcourt QC and R Browne

Solicitor for the Appellant: FitzGerald and Browne Lawyers

Solicitor for the Respondent: Australian Government Solicitor