Kostopoulos v Minister for Immigration and Citizenship

Federal Court of Australia|2008-06-06|Before: Moore J

Introduction 1 On 27 September 2007, the Minister for Immigration and Citizenship cancelled the applicant's Class BF transitional (permanent) visa under s 501(2) of the Migration Act 1958 (Cth). The applicant seeks to challenge that decision under s 39B of the Judiciary Act 1903 (Cth) and s 476A(1)(c) of the Principal Act. The applicant also seeks damages for false imprisonment. To the extent that it is necessary for him to do so, the applicant also seeks an extension of time pursuant to s 477A of the Principal Act. 2 The grounds of the applicant's application are as follows: · The decision to cancel the applicant's transitional (permanent) visa was beyond power, in the sense that the Minister cannot, as a matter of law, cancel a transitional (permanent) visa under s 501 of the Principal Act; · For the purposes of s 34 of the Principal Act, the applicant had not ceased to be an immigrant prior to 2 April 1984; and · The applicant has been unlawfully detained in immigration detention since the expiration of his prison sentence, and is entitled to damages as a result. 3 By agreement, the claim for damages awaits determination of whether the Minister could cancel the applicant's transitional (permanent) visa.

Background 4 The applicant is a citizen of Greece, born in Patra, Greece, on 4 January 1957. On 8 July 1970, the applicant entered Australia, at which time the applicant was granted a permanent entry permit. The applicant left Australia for a short period of time in 1977 to travel to Greece. As a result, his permanent entry permit lapsed. However, his entry permit was 'reinstated' upon his return to Australia later in 1977. 5 On 17 October 2007, the applicant was notified that his transitional (permanent) visa had been cancelled by the Minister, on character grounds, in exercise of the power conferred by s 501(2) of the Principal Act, which 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. (Emphasis added) 6 Section 501(6)(a) provides that a person does not pass the character test if: The person has a substantial criminal record (as defined by subsection (7)) … . 7 Section 501(7) provides: For the purposes of the character test, a person has a substantial criminal record if: (a) the person has been sentenced to death; or (b) the person has been sentenced to imprisonment for life; or (c) the person has been sentenced to a term of imprisonment of 12 months or more; or (d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or (e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution. 8 Section 501F of the Principal Act provides, in part: (1) This section applies if the Minister makes a decision under section 501, 501A or 501B to … cancel a visa that has been granted to a person. ... (3) If: (a) the person holds another visa; and (b) that other visa is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection; the Minister is taken to have decided to cancel that other visa. 9 Also relevant is s 34 of the Principal Act, which governs a class of visas known as 'absorbed person visas'. Section 34 provides (and provided in 1994): (1) There is a class of permanent visas to remain in, but not re-enter, Australia, to be known as absorbed person visas. (2) A non-citizen in the migration zone who: (a) on 2 April 1984 was in Australia; and (b) before that date, had ceased to be an immigrant; and (c) on or after that date, has not left Australia, where left Australia has the meaning it had in this Act before 1 September 1994; and (d) immediately before 1 September 1994, was not a person to whom section 20 of this Act as in force then applied; is taken to have been granted an absorbed person visa on 1 September 1994. (3) Subdivisions AA, AB, AC (other than section 68), AE and AH do not apply in relation to absorbed person visas. 10 The applicant has an extensive criminal history. He has spent over 20 years in criminal custody since he first arrived in Australia in 1970, and on three separate occasions had served a period of imprisonment of greater than five years for armed robbery offences. It appears to be uncontested that the applicant failed to pass the character test by reason of the fact that he had a substantial criminal record within the meaning of s 501(7)(c) of the Principal Act.

The applicant's submissions 11 The applicant contended that the Minister did not have the power to cancel the applicant's transitional (permanent) visa. The applicant contended that by virtue of s 501(2) of the Principal Act, the Minister may only cancel a visa "that has been granted to a person". The applicant's transitional (permanent) visa was, it was argued, never granted to him. Rather, the applicant acquired his transitional (permanent) visa by operation of law, and specifically by operation of reg 4(1) of the Migration Reform (Transitional Provisions) Regulations 1994 (Cth) which provided that: Subject to regulation 5,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.

12 Support for the applicant's contention can be found in the decision in Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236 at 246, where a Full Court observed that the power conferred on the Minister to cancel a visa under s 501 only applies to visas that have been granted to a person. Where a visa has been granted to a person, s 501F(3) operates so that any other visa held by that person is cancelled. On this basis, where an absorbed person visa is cancelled, a transitional (permanent) visa held by that person is also cancelled. However, the Full Court indicated that this process could not operate in reverse. It will be necessary to say something more about this judgment later in these reasons. 13 The applicant also submitted that he had not "ceased to be an immigrant" prior to 2 April 1984, and hence has never held an absorbed person visa as contemplated by s 34 of the Principal Act. If so, it was submitted, the applicant is not the holder of an absorbed person visa and is the holder of only one visa, a transitional (permanent) visa, which cannot be cancelled.

The Minister's submissions 14 The Minister submitted that there is no basis for treating the word "granted" in s 501(2) as limiting the cancellation power in the way submitted by the applicant. "Granted", in the context of s 501(2), encompasses any means by which a person is given or acquires a visa. The word "granted", as it appears in s 501(2), should be read as encompassing any means of giving under the law, including giving by statute as well as giving by administrative decision. Indeed, the purpose of the language in question ("granted to a person"), it was submitted, is to distinguish s 501(2), which concerns the cancellation of visas that are already in effect, from s 501(1), which concerns a refusal to grant visas on character grounds. For the purposes of s 501(2), what is significant is that the person has a visa and not the means by which that visa was acquired. 15 The Minister submitted the Transitional Provisions Regulations were not intended to create a category of visa (namely, transitional (permanent) visas) that cannot be cancelled on character grounds. Prior to the commencement of the Transitional Provisions Regulations, permanent entry permits that continued in force by regulation 4 were susceptible to cancellation on character grounds pursuant to s 180A of the Principal Act, which empowered the Minister to "cancel a valid visa or entry permit that has been granted to a person". Section 180A had been introduced by the Migration (Offences and Undesirable Persons) Amendment Act 1992 (Cth). It was a predecessor provision to s 501(2). It would be anomalous, so the Minister submitted, if the effect of the drafting used in reg 4 of the Transitional Provisions Regulations converted permanent entry permits that had been susceptible to cancellation on character grounds into visas that were not susceptible to such cancellation. 16 Reference was made to the decision of Finkelstein J in Hall v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 387 at 394, where his Honour observed (at [29]): … 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. To similar effect were the observations of Kiefel J in Andary v Minister for Immigration & Multicultural Affairs [2002] FCA 1380at [7] where her Honour said that a transitional (permanent) visa 'was liable to cancellation'. 17 The Minister submitted that the anomalous situation referred to in paragraph [15] above would be compounded by the fact that although it would be possible to cancel the transitional (permanent) visa of a person who had been absorbed into the community prior to 2 April 1984 (by cancelling his or her absorbed person visa, which by virtue of s 501F(3) would lead to the cancellation of his transitional (permanent) visa by operation of law), it would not be possible to cancel the transitional (permanent) visa of a person who had not been absorbed into the community prior to the relevant date (and hence did not hold an absorbed person visa). No sensible reason presents, the Minister submitted, why someone who was not absorbed would have been given such a benefit given it is a benefit denied to someone who had been absorbed into the Australian community.

DISPOSITION OF THE APPLICATION 18 It is convenient to commence by examining in a little more detail the history of the provisions of the Principal Act that deal with the acquisition and cancellation of entry permits and visas to ascertain whether s 501 of the Principal Act authorises the cancellation of a transitional (permanent) visa.

The Principal Act as it stood at the time of the applicant's arrival in Australia 19 The applicant first entered Australia in 1970, at which time he was granted a permanent entry permit. Division 1 of Part II of the Principal Act (as it stood in 1970) dealt with the issue of entry permits. Section 6 of the Principal Act dealt with the issue of entry permits, and provided as follows: (1) An immigrant who, not being the holder of an entry permit that is in force, enters Australia thereupon becomes a prohibited immigrant. (2) An officer may, in accordance with this section and at the request or with the consent of an immigrant, grant to the immigrant an entry permit. (3) An entry permit shall be in a form approved by the Minister and shall be expressed to permit the person to whom it is granted to enter Australia or to remain in Australia or both. (4) For the purposes of the last preceding sub-section, where a notation in a form approved by the Minister as a form of entry permit is made by an officer in a passport or other document of identity held by a person and the notation does not specify the name of any person as the person to whom it relates, the notation has effect as if it were expressed to relate to the person holding the passport or other document. (5) An entry permit may be granted to an immigrant before he enters Australia or after he has entered Australia (whether before or after the commencement of this Part). (6) An entry permit that is intended to operate as a temporary entry permit shall be expressed to authorize the person to whom it relates to remain in Australia for a specified period only, and such a permit may be granted subject to conditions. (7) A woman who enters Australia in the company of, and whose name is included in the passport of, or any other document of identity of, her husband shall be deemed to be included in any entry permit granted to her husband before his entry and written on that passport or other document of identity, unless the contrary is stated in the entry permit. (8) A child under the age of sixteen years who enters Australia in the company of, and whose name is included in the passport of, or any other document of identity of, a parent of the child shall be deemed to be included in any entry permit granted to that parent before the entry of that parent and written on that passport or other document of identity, unless the contrary is stated in the entry permit. (Emphasis added) 20 Section 6(2) provided that an officer may "grant" to the immigrant an entry permit. The effect of s 6(8) of the Principal Act was that if a child under the age 16 of years entered Australia on a parent's passport, that child is deemed to be included on any entry permit granted to the parent. I am satisfied that the applicant, on his arrival in Australian in 1970 aged 12 years, was granted a permanent entry visa either in his own right, or as a result of entering Australia on a parent's passport.

The events of 1977 21 The applicant left Australia for a short period of time in 1977 to travel to Greece. By virtue of s 9(1) of the Principal Act (as it stood in 1977), the applicant's permanent visa lapsed as a result of him leaving the country. However,the applicant's entry permit was reinstated (unders 6(2) or 6(3) of the Principal Act) on his return to Australia later in 1977.

The 1989 Amendment Act 22 The Migration Legislation Amendment Act 1989 (Cth), which commenced on 19 December 1989, made a number of substantial amendments to the Principal Act, and included new provisions for the control of entry into Australia involving entry permits and visas. Following the enactment of 1989 Amendment Act, although permission to enter and to remain in Australia was primarily dependent upon the non‑citizen holding a valid entry permit (s 14(1)), s 17 and s 18 of the Principal Act authorised the holders of entry visas (a visa was defined as "permission to travel to Australia": s 4(1)) to enter the country in certain circumstances). Under s 4(1), the applicant was classed as being the holder of a "valid entry permit", which, since it was not subject to any limitation as to time, was also a "valid permanent entry permit".

The Migration (Offences and Undesirable Persons) Amendment Act 1992 23 The Migration (Offences and Undesirable Persons) Amendment Act 1992(Cth) ("Offences and Undesirable Persons Act") which commenced operation on 2 September 1994, made a number of amendments to the Principal Act. In particular, the Offences and Undesirable Persons Act introduced s 180A into the Principal Act (renumbered as s 501 on 1 September 1994) which (relevantly) provided, in part: (1) The Minister may refuse to grant a visa or an entry permit to a person, or may cancel a valid visa or a valid entry permit that has been granted to a person, if: (a) subsection (2) applies to the person; or (b) the Minister is satisfied that, if the person were allowed to enter or to remain in Australia, the person would: (i) be likely to engage in criminal conduct in Australia; or (ii) vilify a segment of the Australian community; or (iii) incite discord in the Australian community or in a segment of that community; or (iv) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or violence threatening harm to, that community or segment, or in any other way. Paragraph [14] of the explanatory memorandum to the Migration (Offences and Undesirable Persons) Amendment Bill 1992 sets out the anticipated operation of s 180A of the Principal Act: This section provides a power, in addition to powers already in the Principal Act, to refuse to grant a visa or entry permit to a person, or to cancel a valid visa or entry permit held by a person. The power is exercisable in two circumstances. The first of these is where subsection (2) applies to the person because the Minister is satisfied that the person is not of good character. That subsection applies to a person if the Minister is.satisfied that the person is not of good character, after considering the person's past criminal conduct or the person's general conduct.

The 1992 Reform Act and the 1994 Amendment Act 24 The Migration Reform Act 1992 (Cth) substituted a single form of authority (a "visa") to travel to, enter, and remain in Australia for the then bifurcated authority system of visas which permitted travel to Australia and entry permits which permitted persons to enter or remain in Australia. As the explanatory memorandum to the Migration Reform Bill 1992 (Cth) said: In order to simplify travel and entry arrangements, the Reform Bill provides for a single form of authority (to be called a 'visa') to travel to, enter and remain in Australia. Currently the Principal Act provides for one form of authority, a visa, which permits a person to travel to Australia, and for another form of authority, entry permit, which permits a person to enter and remain. … (and later) … there will no longer be a dual documentation system for travelling to Australia (visas) and entering and remaining in Australia (entry permits). The two documents were merged in practice in many cases with the introduction of entry visas in 1989. Under the Reform Act, entry permits will be omitted altogether and visas will become the only authority to travel to, enter and remain in Australia. 25 The 1992 Reform Act did not come fully into force until 1 September 1994, with the Migration Legislation Amendment Act 1994 (Cth) commencing on the same date. 26 When the amendments commenced on 1 September 1994, s 31 of the Principal Act, which dealt with visas, provided: (1) There are to be prescribed classes of visas. (2) As well as the prescribed classes, there are the classes provided for by sections 32, 33, 34, 35, 36, 37 and 38. (3) The regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 36 or 37 but not by section 33, 34, 35 or 38). (4) The regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both. (5) A visa is a visa of a particular class if this Act or the regulations specify that it is a visa of that class. 27 Section 504 of the Principal Act authorised the making of regulations under the Principal Act, and on 1 September 1994, the Migration Regulations 1994 (Cth) (No 268 of 1994) commenced operation. Relevantly, reg 2.01 of the Migration Regulations 1994, which is headed "[c]lasses of visas"provided: "For the purposes of section 31 of the Principal Act, the prescribed classes of visas are: (a) such classes (other than those created by the Principal Act) as are set out in the respective items in Schedule 1; and (b) the following classes: (i) transitional (permanent); and (ii) transitional (temporary)." 28 How the applicant came to hold a transitional (permanent) visa is answered by an analysis of the transitional arrangements that attended the reforms to the Principal Act which commenced operation on 1 September 1994. Indeed, the Migration Regulations 1994 did not specify the content of transitional visas, nor did they specify the method by which persons acquired transitional visas. The content of, and how the applicant came to acquire a transitional (permanent) visa, is dealt with in the Migration Reform (Transitional Provisions) Regulations 1994 (Cth) (No 261 of 1994) which were made pursuant to s 40 of the1992 Reform Act.

Regulation 4.01 of the Transitional Provisions Regulations 29 As noted earlier, the applicant came to have his transitional (permanent) visa by operation of reg 4 (1) of the Transitional Provisions Regulations, which provided: Subject to regulation 5, [which is not relevant in these proceedings] 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.

The explanatory statement to the Transitional Provisions Regulations stated that reg 4 was "designed to ensure that, from 1 September 1994, all visas and entry permits held immediately before that date [were] converted into one of two transitional visa classes by operation of law". The validity of reg 4(1) of the Transitional Provisions Regulations was upheld by the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at [23] - [28]. 30 The Transitional Provisions Regulations were made pursuant to s 40 and s 42 of the 1992 Reform Act (see the discussion in Nystrom at [26]). Relevantly, s 40(5) and s 40(6), provided: (5) The regulations may provide that, from 1 September 1994, visas or permits in a specified Principal Act class and held by specified persons immediately before that date are to continue in effect as visas in a specified amended Act class. (6) The regulations may provide that, from 1 September 1994, specified persons are to be taken to have been granted visas in a specified amended Act class. Paragraph 42 of the explanatory memorandum to the 1992 Reform Bill provides an explanation as to the anticipated effect of s 40(5) and s 40(6): The clause [i.e. the relevant clause of the Migration Reform Bill 1992 which introduced proposed s 40(5) and s 40(6)]also provides that regulations may continue in force visas or entry permits of specified classes which were held immediately before the commencement of the Reform Bill provisions dealing with visas. Related to this provision, the regulations may also deem specified persons to be taken to have been granted visas in a specified class created after the commencement of the Reform Bill provisions dealing with visas. 31 The import of s 40(5) and s 40(6) appears to be that the regulations made pursuant to those provisions may differentiate between visas or permits that are deemed to "continue in effect" as at 1 September 1994, and visas that have been deemed to have been "granted" to a person as at 1 September 1994. Indeed, and in contradistinction to reg 4.01, reg 9 of the Transitional Provisions Regulations provides that the holders of particular types of visas are deemed to have been granted a transitional (permanent) visa on 1 September 1994. As reg 9 states: A non-citizen who, immediately before 1 September 1994, held an old visa of the kind known as: (a) an Authority to Return; or (b) a Return Endorsement; is taken, on 1 September 1994, to have been granted a transitional (permanent) visa permitting the holder: (c) to travel to and enter Australia within 3 years after each departure from Australia; and (d) to remain indefinitely in Australia. 32 An important element in the applicant's case was that the Minister's power to cancel under the then s 180A (now s 501) of the Principal Act was restricted to visas and entry permits that had been "granted" to persons (and not acquired by operation of law) and this manifested a deliberate choice. This proposition is said to be apparent from the temporal proximity between the enactment of the Offences and Undesirable Persons Act and the enactment of the 1992 Reform Act, which as noted earlier, created a distinction between visas that are taken to have been granted and visas that are deemed to continue in effect. 33 As the applicant also pointed out in his submissions, the power to cancel under s 180A (now s 501) of the Principal Act (as introduced by the Offences and Undesirable Persons Act) expressly applied to entry permits and visas that have been grantedto persons. Indeed, although s 501 has been amended since it was first enacted in 1994 (as s 180A), a central feature has remained consistent throughout its history, namely, that the Minister can only cancel visas or entry permits that have been granted to a person. 34 It is necessary to say something more about the Full Court judgment in Moore v Minister for Immigration and Citizenship. The observations of the Full Court in [42]-[45] of their reasons entail a fairly unequivocal statement that a power to cancel a visa "that has been granted" would not be exercisable in relation to a transitional (permanent) visa because that type of visa had not been "granted" or could not be taken to have been granted. However these observations do not, in my opinion, form part of the ratio of the decision. The observations were made in a passage in which the Full Court was discussing ground one in the appeal. At [39], the Full Court indicated that two questions arose in the consideration of ground one. The first was whether the appellant could be taken to have been granted an absorbed person visa (which depended on whether he had been absorbed into the Australian community). The second was if he had not obtained an absorbed person visa, had the Minister effectively cancelled his transitional (permanent) visa. At [60] the Full Court concluded that the appellant had been absorbed into the Australian community well before to April 1984. The Full Court then concluded that the appellant held an absorbed person visa which was taken to have been granted to him. In the result, it was a visa which had been "granted" and one the Minister was empowered to cancel. It does not appear to me that this chain of reasoning necessarily depended on a conclusion that the Minister had no power to cancel a visa which had not been granted. 35 Nonetheless, even though these observations do not form part of the ratio of the decision in Moore, it is necessary for me, as a single judge, to give them significant weight. However, I am firmly convinced that the power to cancel conferred by s 501 was intended to be exercisable in relation to a transitional (permanent) visa. In this case, the applicant held such a visa because he had been originally granted an entry permit. When s 180A was enacted in 1992, the applicant held an entry permit that had been granted. That permit could have been cancelled by exercise of the power conferred by s 180A. The removal of the reference to a power to cancel "a valid entry permit that had been granted" occurred at a time when, by the combined effect of legislative amendments and the promulgation of regulations, visas became the sole means of conferring a right to remain lawfully in Australia. 36 It is inconceivable, in my view, that the amendments made in 1994 to s 180A were intended to render immune from the power to cancel, an entry permit which had been transmogrified into a transitional (permanent) visa. The power conferred by what was then the renumbered s 501 was plainly intended to authorise the Minister to cancel whatever visa was held by a person who the Minister thought ought no longer be able to remain in Australia having regard to that person's character. Obviously I am not concerned here with the appropriateness of the underlying policy or the way in which the power has been exercised in this or any other case. However, I have no doubt the power is intended to be exercisable in relation to any visa and the words "that has been granted" were not intended to condition or limit the power. These words remained as the truncated residue of the formulation first appearing in s 180A, namely "a valid visa or a valid entry permit that has been granted". 37 In my opinion, the Minister had power to cancel the applicant's transitional (permanent) visa. I order that the period within which the applicant is to file his application be extended, and the application be dismissed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Solicitor for the Respondents: Australian Government Solicitor

Migration Act 1958(Cth)ss 31, 34, 476A, 477A, 501Migration

Reform Act 1992(Cth)

Migration (Offences and Undesirable Persons) Amendment Act 1992(Cth)

Migration Legislation Amendment Act 1989(Cth)

Migration Reform Act 1992(Cth)

Migration Legislation Amendment Act 1994(Cth)

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