Hopkins v Minister for Home Affairs

1. The application be dismissed.
2. The applicant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT 1 Section 501(3A) the Migration Act 1958 (Cth) imposes an obligation on the Minister to cancel a person's visa if the Minister is satisfied that the person does not pass the character test because, relevantly, the person has been sentenced to a term of imprisonment of 12 months or more. Section 501CA confers a power on the Minister to revoke the mandatory cancellation following representations by the person but only if he is satisfied that the person passes the character test or there is another reason why the cancellation decision should be revoked. 2 Anthony Hopkins was the holder of a Class BF Transitional (Permanent) visa until it was cancelled on 22 March 2018, purportedly under s 501(3A) of the Act. Mr Hopkins has a long history of criminal conduct, spanning three decades and which began while he was a juvenile. In 2010 a delegate of the Minister decided not to cancel his visa on character grounds but issued a formal warning to him that visa cancellation might be reconsidered if he were to commit further offences or otherwise breach the character test in the future. He was informed that disregard of the warning would weigh heavily against him if his case were to be reconsidered. The visa was ultimately cancelled following Mr Hopkins' conviction on 20 February 2018 on charges of possession of an unauthorised pistol, possession or use of a prohibited weapon without a permit, and supply of a prohibited drug (methylamphetamine). Three additional matters of the same kind were taken into account. Mr Hopkins was sentenced to an aggregate term of imprisonment of three years and nine months. 3 Mr Hopkins made representations to the Minister urging him to revoke the cancellation but a delegate of the Minister affirmed the original decision and, on review, the Administrative Appeals Tribunal affirmed the delegate's decision. 4 Mr Hopkins claims that the Tribunal's decision was affected by two jurisdictional errors: first, that it failed to have regard to Art 12(4) of the International Covenant on Civil and Political Rights (ICCPR); and second, that s 501CA of the Migration Act did not apply to Mr Hopkins because he was not a "person" within the meaning of the section. For these reasons, he argues that there was no foundation in law for the Tribunal's decision. 5 Article 12(4) of the ICCPR provides that no-one shall be arbitrarily deprived of the right to enter his own country. 6 Shortly put, Mr Hopkins' argument is this. 7 First, cl 14 of Direction No. 79, given on 20 December 2018 by the Minister for Immigration, Citizenship and Multicultural Affairs under s 499 of the Migration Act, provides that in deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. Article 12(4) of the ICCPR was an "international non-refoulement obligation" within the meaning of the Direction or was otherwise a matter the decision-maker was bound to take into account. 8 Second, although he is not an Australian citizen, Australia is Mr Hopkins' "own country". He has lived in Australia since he was five months old when his family migrated from the United Kingdom. Support for this construction of Art 12(4) can be found in decisions of the United Nations Human Rights Committee. Based on two such decisions, he contends that the refusal to cancel the visa was contrary to Art 12(4). Having regard to the principle of legality, he submitted that the reference in s 501CA to a "person" should not extend to someone who "attracts" Art 12(4) of the ICCPR, whether as a matter of international human rights law or as part of "an amplified common law right". 9 Neither of these arguments was advanced in the Tribunal. It is common ground that the Tribunal did not take into account Art 12(4) of the ICCPR. The Tribunal referred to the non-refoulement obligations but noted that neither counsel submitted they were engaged in this case. 10 As Mr Hopkins' counsel, Mr Jones, readily acknowledged, the very same points were raised unsuccessfully in Steve v Minister for Immigration and Border Protection [2018] FCA 311 and Azar v Minister for Immigration and Border Protection [2018] FCA 1175. In both cases the Court accepted that Australia was the applicant's "own country", although neither of them was an Australian citizen. But the other arguments were dismissed. In Steve Bromwich J considered that the argument was so weak that he refused leave to the applicant to amend the application to agitate them. In Azar Perry J held at [32] that: Even accepting the applicant's arguments as to the width of the principle of legality and construction of Art 12(4), there is no scope to read subs 501(3A) down so as to "carve out" from the duty to cancel a visa, "person[s]" holding a visa for whom Australia is their "own country" where (or on the assumption that) cancellation would thereby be arbitrary. As the authorities referred to by the applicant make clear, the principle of legality cannot "shield" a right, freedom, immunity or principle "from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature": Lee v New South Wales Crime Commission (2013) 251 CLR 196 at [313] (Gageler and Keane JJ). To put it another way, the presumption may operate only where such constructional choices are open, as French CJ explained in Momcilovic v R (2011) 245 CLR 1 at [43]. It follows that the applicant's construction of subs 501CA(4) must also fail. 11 Her Honour also agreed with Bromwich J in Steve at [58] that the Migration Act comprehensively determines the rights of non-citizens to enter and remain in Australia and there is no room left for the common law to operate. Her Honour's reasons provide an eloquent and compelling rebuttal to Mr Hopkins' arguments. 12 The facts of the three cases are relevantly indistinguishable. Steve had lived in Australia since he was 13 months old and Azar since he was one. Each had had his visa cancelled on character grounds. All three men were represented by Mr Jones. Mr Jones "formally" submitted that these cases were wrongly decided. He did not claim, however, that they were plainly wrong. Moreover, he submitted that, in accordance with the principle of comity, I should follow those decisions: see, for example, Woodridge v Minister for Land and Water Conservation (NSW) (2002) 122 FCR 190 (Hill J) at [14]; Garrett v Commissioner of Taxation (2015) 233 FCR 226 (Kenny J) at [33]. Indeed, Mr Jones invited me merely to note his formal submission and then to dismiss the application with costs. There is no good reason why I should not accede to that invitation. Certainly, he offered none. Orders to that effect should therefore be made. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.