Hall v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 Once again it is necessary to consider the consequences that flow from a failure to comply with a provision of the Migration Act 1958 (Cth). A delegate of the respondent, the Minister for Immigration and Multicultural Affairs, cancelled what was described as a visa that had been granted to the applicant, Mr Hall, on the ground that he did not pass the character test. The delegate relied upon s 501(2) of the Migration Act to cancel the visa. That subsection provides: "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." 2 "Character test" is defined in s 501(6). By that subsection a person does not pass the character test if, among other circumstances, "the person has a substantial criminal record (as defined by subsection (7))": s 501(6)(a). A person has a "substantial criminal record" if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c). 3 On 22 May 1997 Mr Hall was convicted of one count of indecent assault with a child under 16 years, two counts of attempted incest and seven counts of incest. He was sentenced to a term of imprisonment of 5 years. This constituted a substantial criminal record for the purposes of s 501(2). 4 At the time of conviction s 501(2)(a) provided that the Minister could cancel a visa that had been granted to a person if the Minister: "having regard to: (i) the person's past criminal conduct; or (ii) the person's general conduct; is satisfied that the person is not of good character" However, s 501 was replaced by the current provision with the enactment of the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth) (the 1998 Amendment Act). The decision to cancel Mr Hall's visa, which was taken after the 1998 Amendment Act came into force, was based upon the new provision. 5 There is a presumption that a statute should only regulate future conduct and should not change the character of past transactions: Phillips v Eyre (1870) 6 QB 1 at 23 per Willes J. But the presumption does not apply to the change to s 501 brought about by the 1998 Amendment Act. It is clear that the new regime for the cancellation of visas applies, notwithstanding that the events that result in the failure of a person to meet the character test occurred before the new provision came into force. First, the language of the new section clearly picks up past events. Second, once the old section was repealed, it would only govern the cancellation of Mr Hall's visa if he had a right to have the cancellation considered under the old section. I cannot see any such right. Third, to put the matter beyond doubt, item 28 of Sch 1 of the 1998 Amendment Act provides: "(1) The amendment made by item 23 [which affected the amendment to s 501], to the extent that it relates to applications for visas, applies to applications that were made before, on or after the commencement of that item. (2) The amendment made by item 23, to the extent that it relates to visas granted to a person, applies to visas granted before, on or after the commencement of that item." Thus, for the purpose of deciding whether Mr Hall's visa should be cancelled, the Minister was required to proceed as if the old s 501, and its predecessors, had never been passed: Ferrum Metal Exports Pty Ltd v Lang (1960) 105 CLR 647 at 655-656. 6 Mr Hall was entitled to apply to the Administrative Appeals Tribunal to review the decision to cancel his visa: s 500(1)(b). By s 500(6B) that application was required to be "lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1)". Section 501G(1) relevantly provides that if a decision is made under subs 501(2) to cancel a visa that has been granted to a person the Minister must give the person a written notice that: "(c) sets out the decision; and (d) specifies the provision under which the decision was made and sets out the effect of that provision; and (e) sets out the reasons (other than non-disclosable information) for the decision; and (f) if the decision was made by a delegate of the Minister under subsection 501(1) or (2) and the person has a right to have the decision reviewed by the Administrative Appeals Tribunal: (i) states that the decision can be reviewed by the Tribunal; and (ii) states the time in which the application for review may be made; and (iii) states who can apply to have the decision reviewed; and (iv) states where the application for review can be made; and (v) in a case where the decision relates to a person in the migration zone - sets out the effect of subsections 500(6A) to (6L) (inclusive); and (vi) sets out such additional information (if any) as is prescribed ." 7 In addition, in the case of a decision made by a delegate that is reviewable by the Tribunal and relates to a person in the migration zone (Mr Hall was at all material times in the migration zone), s 501G(2) provides that the notice must be accompanied by two copies of every document, or part of a document, that: "(d) is in the delegate's possession or under the delegate's control; and (e) was relevant to the making of the decision; and (f) does not contain non-disclosable information." 8 It is not in dispute that an application to review that is lodged beyond the nine day period specified by s 500(6B) is of no effect and cannot be considered by the Tribunal: see Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324. 9 Mr Hall lodged his application to review the decision of the delegate within the prescribed period. However, contrary to s 500(6C), the application was not accompanied by a copy of the documents referred to in that subsection. Section 500(6C) provides: "If a decision under section 501 relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be accompanied by, or by a copy of: (a) the document notifying the person of the decision in accordance with subsection 501G(1); and (b) one of the sets of documents given to the person under subsection 501G(2) at the time of the notification of the decision." 10 When the matter came on for hearing the Tribunal held that a failure to comply with s 500(6C), which it described as "a mandatory provision", resulted in the Tribunal not having before it a valid application to review the decision of the delegate. For this reason the Tribunal dismissed the application without embarking upon a hearing on the merits. The only question raised by this appeal from the decision of the Tribunal is whether it formed the correct view of the operation of s 500(6C). 11 The task of the court, as explained by Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24 and affirmed by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, is to determine whether Parliament intended a failure to lodge with the Tribunal the documents mentioned in s 500(6C) to invalidate the application under s 500(6B). In that regard, the fact that Parliament has said that the requisite documents must accompany the application does not, of itself, provide the answer: Accident Compensation Commission v Murphy [1988] VR 444 at 448. As the Full Court of the Supreme Court of Victoria pointed out, what must be determined is the consequence of a failure to comply with such an instruction. Upon this issue Parliament has not provided an express answer, but has it done so implicitly? In Howard v Boddington [1877] 2 P D 203 at 211, Lord Penzance explained how the court should approach the matter: "I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look at the subject matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory." It is also important, no doubt, to consider the consequences of a failure to adhere strictly to the requirements of the Act. 12 To arrive at the answer to the question posed I take account of the following matters. First, s 500(6C) is not expressed to be an essential requirement to be observed before the Tribunal determines an application for review. Second, the only documents that must accompany the application for review are those provided by the Minister to the applicant. If the Minister fails to comply with s 501G, an event which will not invalidate his decision (s 501G(4)), the purpose of the subsection will not be satisfied. Third, however, and this is important to note, once an application for review has been received by the Tribunal, the Minister must be notified (s 500(6E)) whereupon, by reason of s 500(6F), the Minister must within 14 days lodge with the Tribunal two copies of every document, or part of a document, that: "(i) is in the Minister's possession or under the Minister's control; and (ii) was relevant to the making of the decision; and (iii) contains non-disclosable information" Fourth, the scheme of the legislation thus far described is that when an applicant has complied with s 500(6C) and the Minister with s 500(6F), the Tribunal should have before it most, if not all, of the documents that will be referred to in the course of the review. Fifth, it will be evident to the Tribunal that an applicant has not complied with s 500(6C) shortly after the Minister has been notified of the application. In that event the Tribunal, if it is so minded, can require the Minister to supply the missing documents. Section 500(6K) permits the Tribunal to require the production of documents. In any event, if relevant documents have not been produced they would be supplied by the Minister. 13 For these reasons I cannot accept that a failure to comply with s 500(6C) will result in the invalidity of the application to review. No purpose would be served by invalidating an application for a failure to provide documents which the Tribunal can obtain in any event. 14 I accept without hesitation that one evident purpose of the new provisions is to ensure that an application to review a decision to cancel a visa will be determined expeditiously. However the failure by an applicant to comply with s 500(6C) will not cause any delay in that process. Section 500(6L) provides that if the Tribunal has not made a decision in relation to the decision under review within a period of 84 days after the date on which the applicant was notified of the decision (and therefore within 75 days after the last day upon which an application for review can be made) then the decision under review is taken to have been affirmed. Accordingly, even if the direction contained in s 500(6C) is disobeyed a decision on the review must still be taken within the 84 days. If there is no time to make the decision, because the Tribunal is waiting to receive the documents, the Tribunal will be deemed to have made a decision adverse to the applicant. 15 Some support for the view that I have formed can be found in City of Port Adelaide Enfield v Minister for Transport and Urban Planning (1999) 73 SASR 22, a decision of the Supreme Court of South Australia. The question that arose in that case was whether an application for planning approval had been validly granted under the Development Act 1993 (SA). Regulations made under that Act required an applicant to include certain information in his or her application. The regulations stipulated that the information "must be included" in the application and in a notice to the Council. The regulations were not complied with. Debelle J held that this failure did not invalidate either the application or the decision to approve the particular development. The principal factor upon which his Honour based his decision was that the planning authority had power to obtain additional information. So it is in this case. 16 Further, the consequence of a strict reading of the provision must also be considered. Apart from exceptional circumstances, the cancellation of a visa will result in the deportation of the non-citizen. In many cases this will cause great hardship, not only to the deportee, but also to his or her family. It is difficult to believe that Parliament intended that the non-citizen should lose his or her right to review the cancellation, merely because certain copy documents that remain in the possession of the Minister had not been lodged. 17 The Minister argues that once it is accepted that a valid application for review must be lodged within nine days of notification of the decision, it is equally essential that the application must be accompanied by the specified documents. Reference was made to Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99 where Lehane J adopted this approach in relation to the requirement, imposed by s 339 of the Migration Act, that an application for review of a decision to refuse a visa must be accompanied by the prescribed fee. 18 However, a similar submission to that made by the Minister was rejected in Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245. In that case the Full Court was required to consider the effect of ss 45, 46 and 47 of the Migration Act. Those provisions deal with the manner in which a valid application for a visa is to be made. Section 45 provides that a non-citizen who wants a visa must apply for a visa of particular class and, if the regulations prescribe the way for making an application for a visa, the regulations must be complied with. Section 46 provides that an application for a visa is valid if and only if, among other things, it is made in the way required by s 45. The regulations are to the effect that an application for a visa must be made on the prescribed form. The Full Court held that although it was essential that an application for a visa be made on the prescribed form, strict compliance with the form was not required and substantial compliance was sufficient. R D Nicholson J (with whom Jenkinson J agreed) said (at 278): "… interrelated provisions in the one Act may impose different obligations so that the provisions may be mandatory in one respect but directory in another (assuming that distinction to be appropriate)." The words in parenthesis were included because his Honour had, in the sentence immediately preceding the passage cited, referred to Tasker v Fullwood where the distinction between mandatory and directory provisions was criticised. 19 In my opinion, the Tribunal was in error in dismissing the application for want of jurisdiction. It should have determined the application on its merits. Now, however, Mr Hall says that it is inevitable that he will succeed before the Tribunal and therefore it is unnecessary to remit his application to it for further consideration. He says that I should declare that the delegate acted beyond power because his visa can never be cancelled under s 501. 20 The basis of this argument is as follows. Mr Hall was first given permission to enter and remain in Australia in 1967. Under the Migration Act as then in force, that permission was known as an "entry permit". By reason of amendments made to the Migration Act after 1967, especially the amendments made by the Migration Reform Act 1992 (Cth), a permission to enter into and remain in Australia came to be known as a visa. 21 As regards persons who had been granted a permit to remain in Australia before the introduction of visas, s 40(5) of the Migration Reform Act provided that regulations could be made that "visas or permits in a … class … held … immediately before [1 November 1993] are to continue in force as visas in a specified amended Act class." By Act No 59 of 1993, s 40 was amended by omitting 1 November 1993 and substituting 1 September 1994. Section 40 was further amended by Act No 60 of 1994 by the insertion of subsection (1A). The effect of the new subsection was that a visa granted before 19 December 1989 was taken to be a class of visa provided for by regulation. 22 Reference should also be made to the Migration Reform (Transitional Provisions) Regulations that were promulgated in 1994. Regulation 4(1) provides: "… if, immediately before 1 September 1994, a non-citizen was in Australia as the holder of a permanent entry permit, that entry permit continues in effect on and after 1 September 1994 as a transitional (permanent) visa that permits the holder to remain indefinitely in Australia." 23 Mr Hall argues that notwithstanding these transitional provisions and reg 4(1) he currently holds an entry permit and does not hold a visa. It follows, according to this argument, that the Minister does not have power to cancel Mr Hall's entry permit because he only has power to cancel a visa. If correct, the Minister could not cancel Mr Hall's visa under the former s 501 nor under the section as it presently stands. 24 However, I do not accept that this argument is correct. The Migration Act is the legislation pursuant to which the Commonwealth grants permission to non-citizens who wish to travel to and enter Australia or remain in Australia. When it was first enacted in 1958, permission to enter and remain in Australia was known as an "entry permit". A non-citizen could apply for and be granted an entry permit or a temporary entry permit. In its original form the legislation also contemplated the grant of a visa. Although not clear until the introduction of s 11A by Act No 117 of 1979, a visa was permission given to a person who was not in Australia, but who wished to travel to Australia or to a person who intended to leave Australia and wished to return. I note in passing that in 1958 the Minister could only cancel a temporary entry permit: see s 7 of the 1958 Act. He could not cancel an entry permit, although if an entry permit had been improperly obtained it would have no effect: see s 16 of the 1958 Act. 25 As a result of amendments made by the Migration Legislation Amendment Act 1989 (Cth) the distinction between an entry permit and a visa became blurred. For example, the 1989 Act introduced an "entry visa" which would operate as an entry permit if the holder entered Australia: see the section introduced as s 10 of the Migration Act. 26 The precursor to s 501 was introduced as s 180A of the Migration Act by the Migration (Offences and Undesirable Persons) Amendment Act 1992 (Cth). In certain specified circumstances the Minister was given the power to "refuse to grant a visa or an entry permit to a person, or [to] cancel a valid visa or a valid entry permit that has been granted to a person". 27 I have already mentioned that important changes to the Migration Act were made by the Migration Reform Act. So far as is relevant for present purposes, one such change was that permission to travel to and enter Australia and permission to remain in Australia were henceforth known as visas. A non-citizen was no longer entitled to an entry permit. It was for this reason that the transitional provisions in s 40 of the Migration Reform Act were introduced. 28 The effect of the transitional provisions, and the regulations to which I have referred, is that permission to remain in Australia which was once known as an 'entry permit' is to be treated as permission to remain in Australia pursuant to a 'visa'. 29 Moreover, the power to cancel a visa that is conferred by s 501(2) should, in my opinion, be construed to allow the cancellation of a permit to remain in Australia, which by force of the transitional provisions continues in force as a visa. That is, because permission to remain in Australia granted before the Migration Reform Act continues in force as a visa, it may be cancelled as a visa. Any other construction would result in the absurd position that a non-citizen who constitutes a danger or threat to the Australian community by reason of his or her past criminal conduct could not be removed from Australia. 30 For the foregoing reasons it will be necessary to remit the matter to the Tribunal for its determination. During the course of submissions a question was raised on the effect of such an order having regard to s 500(6L). Mr Hurley, who appeared for the applicant, expressed concern that it might be said that the period of time specified in that subsection has lapsed and thus the Tribunal could not deal with the remitted application. In my view s 500(6L) will have no application when a matter is remitted to the Tribunal for its reconsideration. Section 500(6L) comes into operation when the Tribunal has not made a decision. For the purposes of that subsection a decision has the same meaning as in the Administrative Appeals Tribunal Act 1975 (Cth): see s 500(7). In that Act a decision is taken to include making or refusing to make an order or determination. The decision of the Tribunal to dismiss the application to review for want of jurisdiction is a decision for the purposes of s 500(6L). Thus the decision under review can no longer be affirmed by default. 31 In the result the Tribunal will not be under any time constraint to deal with the remitted application. This notwithstanding, I assume that the Tribunal will act in accordance with the general policy of the Migration Act and deal with the application as expeditiously as possible. 32 There is one final matter that I should mention, although it is no longer an issue that requires determination. I have mentioned that s 501G(1) requires the Minister to give written notice that a decision has been made to cancel a visa. The notice must set out the reasons for that decision: see s 501(G)(1)(e). 33 When the Minister gave written notice to Mr Hall that his visa had been cancelled the notice specified that "a copy of the decision record that sets out the reasons for the decision" was attached. The document that was said to satisfy this description was entitled "Consideration for Possible Visa Cancellation under Subsection 501(2) of the Migration Act 1958". It is a fourteen page document and contains the following information. In Part A the personal details of Mr Hall are set out. In Part B the grounds for cancelling the visa are set out and certain documents relating to Mr Hall's criminal convictions are referred to as attachments. In Part C, which is described as "Assessment for Cancellation", there is a summary of the offences committed by Mr Hall, a discussion of the circumstances of the commission of those offences and a summary of the views of the sentencing judge. In Part D, which is headed "Discretion", there are the considerations that were taken into account in deciding whether to cancel the visa. They include matters such as the seriousness of the conduct engaged in, the likelihood that the conduct might be repeated, the general deterrent effect of cancelling a visa, the interests of Mr Hall's children and step children and other matters. There is then a discussion of Australia's international obligations. Toward the end of this section, there is a list of "Factors in favour of permanent resident visa cancellation" and a list of "Factors against permanent resident visa cancellation". 34 The decision of the delegate, which appears on the last page of the document, reads: "I have considered all relevant matters including (1) an assessment of the Character Test within the meaning of s 501 Migration Act 1958 (2) the Minister's Direction under s 499 of the Act and the non-citizen's comments, and have decided that: … (a) the non-citizen does not pass the character test, has been unable to satisfy me that they do pass the character test and the visa is cancelled." The document is then signed by the delegate. 35 The Tribunal found that this document did not constitute the reasons for decision as required by s 501G(1)(e). I have a good deal of sympathy for the Tribunal's view. Nowhere in the document does the decision-maker say why he arrived at his decision nor does he explain why he reached the view that the factors against cancellation were not persuasive. Nevertheless, I think there is force in the submission of the Minister that the reason the visa was cancelled is apparent. The exercise does involve "reading between the lines". But when one does "read between the lines" it seems that the delegate considered that the factors favouring cancellation outweighed factors against. This should not be taken as an endorsement of the method of giving reasons. The statute requires the decision-maker (the Minister or his delegate) to give proper reasons for a decision to cancel a visa and a genuine effort must be made to comply with this obligation. 36 If the Tribunal was correct in holding that the Minister did not comply with s 501G(1)(e) then another interesting and difficult question would arise, namely whether the time for making an application to review the decision had commenced to run for the purposes of s 500(6B). The period within which the application for review must be lodged is nine days from the day on which the person was "notified of the decision in accordance with subsection 501G(1)". It is arguable that if a person has not been notified of a decision in the manner required by s 501G(1) then the time under s 500(6B) has not commenced to run. The final resolution of this issue can be left for another day. 37 I will order that the decision of the Tribunal be set aside and that the respondent pay the applicant's taxed costs of this application. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.