Kinikini v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an appeal from a decision of Scarlett FM (Kinikini v Minister for Immigration [2005] FMCA 205) dismissing an application for relief challenging a decision made by the then Minister for Immigration and Multicultural and Indigenous Affairs on 30 June 2003 to exercise his discretion under s 501(2) of the Migration Act 1958 (Cth) (the Act) to cancel the Resident Return Visa of the appellant Nancanieli Kinikini. The short point is that it should have been found that a substantial purpose of the Minister's decision was the imposition of additional punishment on the appellant, that being an improper purpose or, alternatively, an irrelevant consideration. It is further contended that s 501(2) would be inconsistent with Ch III of the Constitution to the extent that it authorised the cancellation of a visa for a punitive purpose, as the imposition of punishment for criminal offences is an exclusively judicial function. 2 The appellant is a citizen of Fiji. He was born on 14 November 1980. He first arrived in Australia on 2 June 1990 with his parents. He has lived in Australia ever since, although he has spent three periods of up to a month out of Australia in that time. He is the holder of a Resident Return Visa pursuant to the Act. 3 On 23 January 2002 the appellant was sentenced to imprisonment for four years dating from 16 July 2001 with a non-parole period of two years for the indictable offence of robbery whilst armed with a dangerous weapon. He was also given concurrent sentences of nine months for assault occasioning actual bodily harm, 12 months for possessing a loaded firearm in a public place and 12 months for possessing an unauthorised firearm, namely a pistol. 4 On 12 December 2002 the appellant received a notice of intention to consider cancelling his visa and, after a response on his behalf, on 2 May 2003 the Department of Immigration and Multicultural and Indigenous Affairs sent a memorandum to the Minister entitled 'Issues for consideration of possible visa cancellation of Resident Return Visa under s 501(2) of the Migration Act 1958' (the Issues Paper). On 30 June 2003 the Minister signed a document in the following terms: 'I reasonably suspect that Mr Kinikini does not pass the character test and Mr Kinikini has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa.' 5 When the proceeding came on for hearing before the learned Federal Magistrate the decisions to be given in Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 and Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172 were reserved but were delivered prior to the decision by Scarlett FM and were taken into consideration in that decision. 6 The appellant's case was that the Issues Paper set out the matters taken into account by the Minister and expressly referred to three impermissible considerations: the possibility that cancellation of the appellant's visa might deter others (identified as 'an important factor'), the seriousness of what the appellant had done and the expectation of the Australian community that non-citizens 'obey Australian laws while in Australia', all indicating double punishment for the offences committed. 7 Having analysed the Full Court decisions in Djalic and Tuncok, Scarlett FM was not satisfied that the Issues Paper gave any indication that the decision was activated by any purpose other than the legitimate purpose of protecting the Australian community. The proceeding was dismissed. 8 By the time this appeal came on for hearing the High Court of Australia had refused to grant special leave to appeal from the judgment of the Full Court in Djalic on the basis that there was no reason to doubt the correctness of the decision. 9 Before examining the appellant's argument, it should be noted that it was submitted for the Minister (as it had been submitted before Scarlett FM) that there is no evidence of the Minister's reasons and thus no basis upon which any relevant argument can be founded. It was submitted that the Issues Paper is not a statement of reasons (Minister for Immigration and Multicultural Affairs v W157/OOA (2002) 72 ALD 49, especially at [41]-[55], [72], [85], [89] and [107]; Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 196 ALR 332 at [53]-[57]; Dagli v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 298 at [61]). It was submitted for the appellant that the evidence established that the Minister had taken into account the Issues Paper in reaching the decision in issue. 10 Assuming for the purpose of argument that the appellant to be correct in this, it is submitted for the appellant that the reasoning of the Full Court in Djalic is consistent with the basic premise upon which the appellant's argument proceeds based upon the following passage: