Johnson v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 758 | Case summary

3 The acronym 'CBO' refers to a Community Based Order under Pt 9 of the Sentencing Act 1995 ( WA). The term 'ISO' refers to an Intensive Supervision Order under Pt 10 of that Act. That Act also provides that if, while an ISO is in force, the offender commits another offence, the offender may be sentenced again for the offence to which the ISO relates. 4 On 19 January 2002, the Minister for Immigration, Multicultural and Indigenous Affairs cancelled Mr Johnson's visa under subs 501(2) of the Migration Act 1958 (Cth). This cancellation was done on the basis that the Minister reasonably suspected that Mr Johnson did not pass the character test as defined by s 501(6) of the Act and that he had not satisfied the Minister that he passed the character test. As a result Mr Johnson was taken into immigration custody pursuant to s 196 of the Act. 5 On 17 February 2003, Mr Johnson lodged an application for an order of review of the Minister's decision. Directions were given on 20 March 2003 for filing of documents and affidavits prior to the hearing of the application. On 19 May 2003, Mr Johnson changed solicitors. On 4 July 2003, a memorandum of a proposed substituted application for review and for prerogative and injunctive relief was filed. 6 On 11 July 2003, a motion was filed for Mr Johnson's interlocutory release pending the hearing of his application or until further order. Directions were made by consent on 17 July 2003 that the motion be heard on 18 July and that the substantive hearing, which had been fixed for 18 July 2003, be adjourned to a date to be fixed. This was done on the basis that the principal ground of the substituted application is that Mr Johnson is neither immigrant nor alien and therefore falls outside the constitutional limits of the Migration Act in so far as it relates to the cancellation of visas and the removal of persons from Australia. The ground is based upon the decision in Re Patterson; Ex parte Taylor (2001) 207 CLR 391. The majority in that case, Gaudron, McHugh, Kirby and Callinan JJ, overruled an earlier decision of the High Court in Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178. Gaudron, Kirby and Callinan JJ held in substance that British subjects who migrated to Australia before 1987 were not 'aliens' for constitutional purposes and, if no longer migrants because absorbed into the community, were not liable to deportation. There was however a division in views between the three named justices and McHugh J, which left uncertain the critical date after which a British subject arriving in Australia would always remain an alien notwithstanding absorption into the community. This division was highlighted by the divergence of views expressed by members of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Te and Dang (2002) 193 ALR 37 on the question whether Re Patterson had any, and if so, what ratio decidendi. See also the discussion in Long v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 1422. The question has again been considered by the High Court which has reserved its judgment in the matter of Shaw v Minister for Immigration and Multicultural and Indigenous Affairs which was heard on 17 June 2003. 7 In a submission prepared by the Department for the Minister, which led to the cancellation of the visa, reference was made to Mr Johnson's conviction and sentencing in the Roebourne Court of Petty Sessions on 11 December 1997 on two counts of possession of cannabis with intent to sell or supply. In respect of each he was sentenced to fourteen months imprisonment, suspended for two years. On 4 June 1998, he pleaded guilty in the District Court at Karratha to a charge of attempting to pervert the course of justice and was subjected to an Intensive Supervision Order for a period of twenty-four months together with two hundred hours of community service work. 8 On 31 August 1998, at the Port Hedland Court of Petty Sessions Mr Johnson was convicted on his own plea of guilty of being unlawfully on premises and in possession of cannabis. This amounted to a breach of the Intensive Supervision Order so he became liable to be sentenced for the attempt to pervert the course of justice in respect of which that order was made. As a result he was sentenced on 1 December 1998 to twelve months imprisonment. The submission to the Minister was that it was open to the Minister to find that there was a reasonable suspicion that Mr Johnson did not pass the character test due to the fact that he had been sentenced for a term of imprisonment of twelve months or more. 9 It is not necessary for present purposes to canvass the detail of the submission upon which the Minister acted in deciding to cancel Mr Johnson's visa. The statutory basis for the decision is to be found in s 501(2) of the Act which provides: '501(2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test.' This is to be read in conjunction with s 501(6) and s 501(7). Relevantly, these subsections provide: '501(6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); … (7) For the purposes of the character test, a person has a substantial criminal record if: … (c) the person has been sentenced to a term of imprisonment of 12 months or more; …' 10 Given the present uncertainty of the law relating to the application of the aliens power and the likelihood that Mr Johnson has, as he claims, been absorbed into the Australian community, there would be little point in proceeding to a hearing of his application before the High Court has delivered its judgment in Shaw. Absent an interlocutory order Mr Johnson will remain in detention until the determination of that application. 11 It is not disputed by counsel for the Minister that there is a serious question to be tried in this case. The motion therefore falls to be decided upon the balance of convenience, although in so saying, I recognise that the two criteria for the grant of interlocutory relief, namely the strength of the applicant's case and the balance of convenience are interdependent. 12 In an affidavit sworn in support of the application for interlocutory release, Mr Johnson referred to his criminal record and the suspended sentence of fourteen months imposed in respect of two counts of possession of cannabis and selling cannabis. He claimed that at the time he was charged the police also seized $700 which had nothing to do with the sale of the drug. He said he felt the money had been wrongly seized but he didn't have the necessary evidence to prove that it should not have been taken by the police. He therefore used receipts which did not relate to the $700 and presented them to police in an endeavour to recover the money. It was in respect of this conduct that he was charged with attempting to pervert the course of justice and subsequently placed on an Intensive Supervision Order. He said in his affidavit that he regards this as a serious offence and bitterly regrets his actions. 13 A few months after that event he was again charged with possession of cannabis, careless driving, not having a driving licence and, on another occasion, having been unlawfully on premises. He said the latter offence occurred when he woke up after a party and did not know where he was. He said the house owner called the police and he was charged. He recognised that he was drinking far too much and that he was adversely affected by alcohol. Because he had committed these offences during the period that he was on the intensive supervision order he was also sentenced to twelve months imprisonment for breaching that order. He served a total time in prison of about ten months which he said, so far as he could recall, was from August 1998 to May 1999. Following his release from prison he was on parole for approximately twelve months and fully complied with its terms. The term he served in 1998/1999 is the only time he has spent in prison except for one month in 2000 when he was unable to pay outstanding fines which he said totalled approximately $4800. 14 Since his imprisonment in 1998/1999 and particularly since he undertook a drug counselling course at the end of 2001, Mr Johnson claims to have turned his life around and to be no longer affected by drugs or excessive drinking. One of his brothers died in prison in 2001 which came as a shock to all members of the family. It also caused him to realise that he needed to get his life together and to avoid previous behaviour that had got him into trouble. He said that his offences since 1998 have been 'relatively minor' in nature. He has had problems with his parents in the past however they have resolved those differences and, particularly since the death of his brother, they have been very supportive of him. 15 During the first semester of 2002, Mr Johnson attended the Eastern Pilbara College of TAFE and took an automotive mechanics course. He stayed with his parents in South Hedland while he took this course. His lecturer provided a reference in relation to his satisfactory work and behaviour while on it. In September 2002, he obtained employment as a sheet metal worker making steel door frames for residential and business premises. This, he said, was the first fulltime and permanent employment that he had been able to secure for a long time. His employer was happy with his work. During this period he stayed with his brother Andre and his brother's wife and their two children. He gets on very well with all of them. He felt that the previous problems in his life had been largely resolved. On 21 January 2003 however, he was taken into immigration detention. Mr Johnson said in his affidavit that if released from detention he would live with his parents or as otherwise required by the Court and would undertake to comply with any conditions the Court might impose or that the Minister might require for his release from detention. 16 His application for interlocutory release was supported by his father, Peter Johnson, who swore an affidavit. His father is a boilermaker who lives normally at South Hedland but who also has a house in Beechborough where he lives when he is in Perth. He referred in the affidavit to his son's past difficulties which he attributed to emotional immaturity. His trouble in obtaining employment in the past had also, in his father's opinion, contributed to Mr Johnson's problems. He said that since 1999 the offences in which Mr Johnson had been involved were relatively minor in nature. He took direct responsibility for one of those. He said that in 2000 his son was being a nuisance asking for money and he did not want him around the house at the time. He persuaded his wife to seek a restraining order. When his son came around to the house contrary to the order, he reported it to the police and his son was charged and convicted. In his affidavit Mr Johnson Snr said that he felt this was his fault as he did not appreciate the seriousness of the consequences of what was really just a family dispute. The restraining order is no longer in place and his son has stayed with them from time to time since those events and, in particular, while he undertook a TAFE course at Hedland during the first part of 2002. 17 Mr Johnson said he was particularly pleased with the improvement in his son's attitude and responsibility during the course and even more so when in September 2002 he obtained what was full-time and hopefully permanent work with Premier Sheet and Metal Industries in Perth. From his discussions with the manager, Mr Johnson Snr understood that the employer has been very pleased with his son's work and his attitude to work and wanted him to continue. His father said that he and his wife are willing to have their son stay with them when at their home in South Hedland or in Perth and to ensure that he fully complies with such conditions that are imposed. At the time of swearing his affidavit on 18 June, Mr Johnson Snr had been out of work for two weeks. Following his son's detention he had made significant payments to his son's previous solicitors and a further payment to his present solicitors and has limited immediate financial resources. He is, however, able to raise $1000 as a bond to secure his son's compliance with the conditions of his release. 18 The affidavits were not challenged and for the purposes of the interlocutory proceedings, I am prepared to rely upon them. 19 Mr Johnson has offered to undertake to the Court to comply with the following conditions upon the grant of an interlocutory injunction for his release from detention: '1. That upon my release I will reside with my parents either at their home at 46 Pedlar Street, South Hedland or at their home at 6 Mackenzie Place, Beechborough, WA 6063. 2. I will travel with my parents if and when they travel between South Hedland and Perth. I will give 24 hours notice of my change of address between those residences and the expected time of the journey. 3. If residing in South Hedland, I will report on Tuesdays during ordinary working hours excluding only public holidays to the officer in charge of the South Hedland Police Station and in addition thereto by telephone on Mondays, Wednesdays, Thursdays and Fridays, to James Petcov Telephone 94159164 or such other named officer or officers at the Perth office of DIMIA as may be required, during ordinary working hours excluding only public holidays. 4. If residing in Perth, I will report in person to the DIMIA office at 411 Wellington Street Perth WA 6000 on Tuesdays during ordinary working hours excluding only public holidays and in addition thereto by telephone on Mondays, Wednesdays, Thursdays and Fridays to James Petcov Telephone 94159164 or such other named officer or officers at the Perth office of DIMIA as may be required, during ordinary working hours excluding only public holidays. 5. My father Peter Samuel Johnson will forthwith deposit with the Australian Government Solicitor, to be held in a non-interest bearing trust account, a bond in the sum of $1000, to be forfeited to DIMIA in the event of any breach of the above conditions which continues for more than 2 days after notice of breach has been given to me at 46 Pedlar Street, South Hedland and to 6 Mackenzie Place, Beechborough, WA 6063.' 20 It is not in dispute that the Court has the power to make the orders sought by Mr Johnson. The existence of that power was recognised by the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v VFAD of 2002 (2002) 196 ALR 111. 21 I take the same approach to assessing the balance of convenience as in Preston v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 420 at [27]: 'In assessing the balance of convenience, the primary consideration lying against the applicant is, that as a matter of public policy, the law should be treated as valid according to its terms until adjudged otherwise, ie as invalid or constitutionally limited in its application. That is a proposition of general application to any law whose validity or constitutional limits is in issue. Where the constitutional limits of the law determine whether or not a person is subject to administrative detention, there arises a countervailing consideration affecting the balance of convenience. That is that every person is entitled, unless lawfully detained, to be at liberty. A seriously arguable case that a person is being detained in the purported exercise of a power beyond constitutional limits raises a risk that the person is being unlawfully detained. This is a significant factor in determining whether in such a case there is a compelling ground for the grant of interlocutory relief. It is important to bear in mind that the compelling ground criterion is of general application as an expression of the "balance of convenience" criterion for the grant of interlocutory relief in relation to the enforcement of a wide range of laws. Like the balance of convenience test which it expresses, it is ambulatory in character. The risk that a person may wrongfully be deprived of his or her liberty is not to be put on the same footing as the risk that a person may be required to pay an unlawful tax or fee. An unlawful tax or fee may be recoverable. Liberty lost is never recoverable even is partially compensable by damages.' 22 The question whether an applicant for judicial review of a visa cancellation decision should be released from immigration detention, pending the hearing and determination of the substantive application, is not to be answered by reference to criteria applicable to the grant of bail in criminal or extradition proceedings. The applicant in such a case asserts that he or she is entitled to remain in Australia and resists removal from this country. The release of such an applicant does not, in the ordinary course, involve a risk of flight from the jurisdiction which would be at odds with the very result which the applicant seeks to achieve. What it does risk is the possibility that an applicant might fail to comply with the conditions of interlocutory release and 'disappear' into the community in order to evade removal from Australia. 23 It was submitted by counsel for the Minister that the balance of convenience does not favour Mr Johnson's release from detention. Mr Johnson, it was said, has a substantial criminal record including convictions for resisting arrest, breach of a misconduct restraining order (sic), providing a false name and address, driving a motor vehicle when under suspension, breach of an Intensive Supervision Order and attempting to pervert the course of justice. These convictions, it was said, suggest that Mr Johnson may not comply with reporting or other conditions which might be imposed if he were released or make himself available for removal if his application were ultimately unsuccessful. 24 Counsel referred to observations of Gummow J in Cowgill, Ex parte Minister for Immigration and Multicultural and Indigenous Affairs, unrep P100/2002, 4 April 2003, where his Honour said that 'the past criminality of the applicant' was relevant to the balance of convenience. The criminal history of Mr Johnson, as with that of the applicant in Cowgill, was said to reflect a propensity not to comply with court orders. Gummow J refused to order the interlocutory release of the applicant in Cowgill where there was a constitutional challenge to s 501 of the Act in so far as it affected that applicant, despite the 'important interest in his personal liberty'. In that case Gummow J referred to the applicant's past criminality as supplying a countervailing consideration and also the 'conjunction of s 501 and s 196 of the Act', in representing a legislative judgment upon countervailing considerations to the personal liberty of the applicant. 25 There is in this case, as in every such case, a risk that Mr Johnson would fail to comply with the conditions of his release and that he might seek, by unlawful means, to evade ultimate removal from this country. In the circumstances of his family support however and the changes which have occurred in his life recently that risk is, in my opinion, considerably less than it might have been. That is not to say that the risk is non-existent. Prognosis of behaviour in this area is an uncertain science. But the prospect that the applicant might spend the next few months in unauthorised custody pending judicial resolution of the uncertain reach of the law under which he is confined, in my opinion, outweighs that risk. Subject to conditions along the lines of the undertaking which have been offered by Mr Johnson, I am therefore prepared to order his interlocutory release. 26 I am concerned about the possibility that Mr Johnson may be unable to engage in useful employment during the period of his release and I invited the parties to provide supplementary submissions on the question whether he could be permitted to work during that time. Supplementary submissions were provided. 27 Section 235 of the Migration Act provides, inter alia: '(3) An unlawful non-citizen who performs work in Australia whether for reward or otherwise commits an offence against this subsection.' Subsection 235(4B) provides that an offence against subs (3) is an offence of strict liability. This is a term which is defined in s 6.1 of the Criminal Code Act 1995 (Cth). It means that: '(a) there are no fault elements for any of the physical elements of the offence; and (b) the defence of mistake of fact under section 9.2 is available.' The existence of strict liability does not make any other defence unavailable (s 6.1(3)). 28 It was submitted on behalf of Mr Johnson that if he were to work and his visa were found to have been validly cancelled then he would be an unlawful non-citizen and would have committed an offence. If the visa had not been validly cancelled or he were otherwise beyond the power of the Commonwealth to prevent him from going about his ordinary lawful business, including earning a living to support himself, then, it was submitted, he might lawfully work and s 235(3) would have no application to him. It was submitted that the Court has the power to issue an interlocutory injunction to prevent the Commonwealth 'at this stage' from prosecuting Mr Johnson for working or from taking any other steps which would prevent him from working. Reliance was placed in this regard on Castlemaine Tooheys Ltd v State of South Australia (1986) 161 CLR 148 where the applicant company sought an interlocutory injunction to prevent prosecution for selling bottles of beer which did not comply with South Australian laws in relation to returnable bottles. It was argued that the injunction in that case was not granted because of balance of convenience considerations not applicable in the present case. The balance of convenience, it was said, clearly supports Mr Johnson being able to earn a living to support himself and not being a burden on his parents or on charitable institutions. It was also said to be preferable that he be permitted to work so as not to be in a position of enforced idleness. Accordingly he seeks a further interlocutory order restraining the Minister, his servants or agents from taking any steps to hinder or prevent him from seeking or undertaking employment that may otherwise be available to him. 29 It was submitted for the Minister that the Court is not empowered under s 23 of the Federal Court of Australia Act 1976 (Cth) to make an order preventing the Commonwealth from prosecuting Mr Johnson for working. The Court, it was said, does not have power to make an order that would enable him to breach a law of the Commonwealth without being at risk of prosecution. It was also noted that in Castlemaine Tooheys, Mason ACJ at 154 said that in cases where the court had indicated its willingness to protect a plaintiff's alleged constitutional right by restraining the enforcement of a statute where the plaintiff would suffer irreparable injury without any countervailing detriment to the public interest, the court did not go so far as to restrain the defendant from commencing prosecutions for breach of the statute whose validity was impugned. 30 I am not satisfied that I have the power for which Mr Johnson's counsel contends. The application of civil remedies to criminal proceedings, real or apprehended, is problematic and in this respect I refer to the discussion in Crane v Gething (2000) 97 FCR 9 at 20-23. In that case the Court was concerned with the appropriateness of a declaration that the applicant had not committed an offence against the criminal laws of the Commonwealth. As noted in that case, it has been accepted that the capacity of courts to declare that conduct which has not yet taken place will not be in breach of a law 'contributes enormously to the utility of the jurisdiction' - Commonwealth v Sterling Nicholas Duty Free Pty Ltd (1972) 126 CLR 297 at 305 (Barwick CJ). However as Menzies J observed in the same case (McTiernan J agreeing) the court, in exercising its discretion to award declaratory relief, would '…take into account, in an appropriate case, the principle that, in general, matters of criminal law should be dealt with at trials for alleged offences' (311). Importantly, the authorities referred to in Crane's case and the discussion there concerned the availability of final declaratory relief that proposed conduct would not constitute a contravention of criminal law. 31 In the present case, the question whether it would be an offence for Mr Johnson to perform work while on interlocutory release cannot finally be answered until the final determination of his challenge to the validity of the cancellation of his visa. No declaration could be granted that the performance of such work would not constitute an offence. If Mr Johnson were to engage in work and were to be prosecuted for doing so during his interlocutory release, there is no basis, and none has been advanced, upon which it could be said that the initiation of the prosecution would be unlawful. That is so even were a defence, based upon the invalidity of the cancellation of his visa, to succeed. Absent malice, the initiation of a prosecution in such circumstances would not involve the prosecuting authority in the commission of any wrongful act or the infringement of any right enjoyed by Mr Johnson. There is therefore no basis in my opinion on which I could restrain the Minister or any other party (including the Director of Public Prosecutions) from initiating a prosecution against him if he were to engage in work during the term of his interlocutory release. 32 The result, in my opinion, is unfortunate. It is neither in the interests of Mr Johnson nor of the Australian community that he spend the next few months in enforced idleness pending the hearing and determination of his application. Notwithstanding that, I consider that the balance of convenience favours the grant of the interlocutory release sought and I will order it. I certify that the preceding thirty two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Johnson v Minister for Immigration & Multicultural & Indigenous Affairs

At a glance

Court

Decision date

Before

Source

Judgment (14 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (9)

Cited By (2)