Lam v Minister for Immigration & Multicultural Affairs

facts and statutory provisions 5 Lehane J noted that the relevant facts were not controversial. Taking them substantially from reasons for decision delivered by Mathews J as President of the Administrative Appeals Tribunal ("the AAT") on 3 February 1999 (referred to below), his Honour set them out in the following paragraphs of his own reasons, which we are grateful to be able to adopt: "[6] The applicant is a Chinese national, born in the Peoples Republic of China on 21 September 1959. He had little schooling. He entered Hong Kong illegally in 1979 but later became entitled to remain there. In December 1985, he stowed away on a ship bound from Hong Kong to Australia. On 20 January 1986, the day on which he arrived in Sydney, he was issued with a temporary entry permit expiring on the same day. He remained in Australia illegally and obtained employment at a Chinese restaurant in Sydney. On 12 April 1988, he married Ms My Y Lu, then a Vietnamese citizen residing in Australia. The marriage ceremony was a traditional Chinese one; it was followed on 8 September 1990 by a ceremony which rendered the marriage formally valid under Australian law. A son was born on 20 November 1988 and daughter on 31 October 1998. [7] In 1989, the police discovered a large quantity of heroin hidden in the roof of the applicant's house. He pleaded guilty in the District Court of New South Wales to a charge of possessing a prohibited import and was sentenced to a minimum term of seven years, dating from 11 May 1989, with an additional term of two years and four months. He was an exemplary prisoner. His wife maintained close contact with him by visits and telephone calls. The son accompanied Ms Lu when she was able to visit the applicant. During the last few months of his sentence, the applicant was allowed to go home on day release for one day each week. Upon his release in May 1996, he returned to live with his wife and son in Lakemba. Since his release the applicant has worked as a cook, earning $250 per week. Mathews J found that his relationship with his wife and son is close. The applicant had not reoffended since his release. [8] On 20 December 1993, the applicant applied for a December 1989 (Permanent) Entry Permit. By virtue of the Migration Reform Act 1992 (Cth) the application was, after 1 September 1994, to be treated as an application for a Transitional (Permanent) Visa. Among the criteria to be satisfied at the time of the decision on his application was that the applicant "satisfies public interest criteria 4001 …" (Migration (1993) Regulations, Sch 2 Item 812.736(1)). Those criteria were set out in Sch 4 to the Migration (1993) Regulations, as follows: '4001. (1) The applicant meets the requirements of subclause (2), (3) or (4). (2) An applicant meets the requirements of this subclause if, after appropriate enquiries, the Minister has decided that there is no evidence of anything that might justify the refusal, under section 180A of the Act, to grant the visa or entry permit. (3) An applicant meets the requirements of this subclause if, after appropriate enquiries and consideration of all available evidence of anything that might justify the refusal, under section 180A of the Act, to grant the visa or entry permit, the Minister has decided that that evidence is insufficient to satisfy the Minister of any of the matters referred to in paragraph (1)(b) and subsection (2) of that section. (4) An applicant meets the requirements of this subclause if, despite being satisfied that the refusal, under section 180A of the Act, to grant the visa or entry permit is justified, the Minister has decided not to exercise the power under that section to refuse to grant the visa or entry permit.' Section 180A of the Migration Act was renumbered as s 501 by the Migration Legislation Amendment Act 1994 (Cth). [9] On 6 March 1996, shortly before the applicant's release from prison, a delegate of the Minister decided to refuse the visa application, in exercise of the authority conferred on the Minister by s 501 of the Migration Act. That meant that the public interest criterion 4001 had not been satisfied. The delegate made no decision as to whether the applicant met any of the other criteria for the visa. Section 501, as it then stood, provided as follows: '501 (1) The Minister may refuse to grant a visa to a person, or may cancel a visa 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. (2) This subsection applies to a person if the Minister: (a) 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; or (b) is satisfied that the person is not of good character because of the person's association with another person, or with a group or organisation, who or that the Minister has reasonable grounds to believe has been or is involved in criminal conduct. (3) The power under this section to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person.' [10] The applicant applied to the Administrative Appeals Tribunal for review of the delegate's decision. He was entitled to do so under s 500(1)(b) of the Migration Act, which provided that: '500 (1) Applications may be made to the Administrative Appeals Tribunal for review of: … (b) decisions of the Minister under s 501; …' [11] By a decision dated 11 June 1997, the Tribunal affirmed the delegate's decision. The applicant then applied to the Court, under Pt 8 of the Migration Act, for review of the decision of the Tribunal and, on 4 March 1998, the Court ordered that the decision be set aside and that the matter be remitted to the Tribunal, differently constituted, for determination according to law. It was in those circumstances that the matter was considered by Mathews J, as President of the Tribunal. Her decision dated 3 February 1999 was expressed as follows: 'The Tribunal sets aside the decision under review and in substitution therefor finds that Mr Lam meets the requirements of criterion 4001(4) under the Migration Regulations. The matter is remitted to the respondent for consideration of the remaining aspects of Mr Lam's application.' [12] The matter was then referred to the Minister for consideration under s 501A of the Migration Act. That provision was introduced by s 3 of, and item 23 of Sch 1 to, the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth). Subsections (1) and (2) [at the time of the hearing before Lehane J provided]: '501A (1) This section applies if: (a) a delegate of the Minister; or (b) the Administrative Appeals Tribunal; makes a decision (the original decision): (c) to grant a visa to a person as a result of not exercising the power conferred by subsection 501(1) to refuse to grant a visa to the person; or (d) not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person. Action by Minister - natural justice applies (2) The Minister may set aside the original decision and (a) refuse to grant a visa to the person; or (b) cancel a visa that has been granted to the person; if: (c) the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and (d) the person does not satisfy the Minister that the person passes the character test; and (e) the Minister is satisfied that the refusal or cancellation is in the national interest.' [13] Subsection (5) requires the power under s 501A(2) to be exercised by the Minister personally. The transitional provisions - particularly item 33 of Sch 1 - of the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act have the result that s 501A applies in relation to a decision made under s 501 as in force before that Act came into effect. The 'character test' referred to in s 501A is, however, to be found in s 501 as amended. It is similar to, but in some respects more rigorous than, the test previously to be applied under s 501(1) and s 501(2). It is as follows: '(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)); or (b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or (c) having regard to either or both of the following: (i) the person's past and present criminal conduct; (ii) the person's past and present general conduct; the person is not of good character; or (d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would: (i) engage in criminal conduct in Australia; or (ii) harass, molest, intimidate or stalk another person in Australia; or (iii) vilify a segment of the Australian community; or (iv) incite discord in the Australian community or in a segment of that community; or (v) 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 in violence threatening harm to, that community or segment, or in any other way. Otherwise, the person passes the character test. Substantial criminal record (7) For the purposes of the character test, a person has a substantial criminal recordif: (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.' Succeeding subsections further refine the definition, but not in ways that matter for present purposes. [14] The Department sought and received submissions from the applicant's solicitors on the question whether the Minister should exercise his power under s 501A(2). On 15 June 2000, the Minister made the decision which the applicantnow seeks to set aside. The Minister decided that the applicant did not pass the character test and had been unable to satisfy the Minister that he did pass the character test; and that refusal of the application was in the national interest. Accordingly, the Minister decided that the application should be refused."

lehane j's reasons for answering the separate question "No" 6 Before his Honour, as before us, Mr Lam's argument was a simple one which proceeded generally along the following lines. The AAT's decision of 3 February 1999 (set out above) was not a decision "to grant a visa to a person as a result of not exercising the power conferred by subsection 501(1) to refuse to grant a visa to the person" within par 501A(1)(c) of the Act and therefore the power given to the Minister by subs 501A(2) to refuse to grant a visa was not available to him. In substance, the Minister decided prematurely: under the legislative scheme, he was required to await the making of a decision by his delegate pursuant to the remission by the AAT. 7 The Minister's submission was that such a "literal" interpretation would have the result that subs 501A(2) could not operate as intended in relation to decisions of the AAT, because, when the AAT reviews a decision under s 501, it will never decide "to grant a visa". The Minister submitted that this would be a capricious or irrational result and that another construction, if open, should be preferred. 8 Lehane J thought that the "literal" construction supported by Mr Lam would lead to an absurdity and that the words "decision ... to grant a visa" might, and should, be read as referring to a decision in favour of the grant of a visa, that is to say, a decision that would enable a visa to be granted. His Honour thought that while the "literal" construction of subs 501A(1) would allow subs 501A(2) an operation in relation to a decision by the AAT of the kind referred to in par 501A(1)(d) (a decision not to cancel a visa), it would allow it none in relation to such a decision of the kind referred in par 501A(1)(c) (a decision to grant a visa). 9 Lehane J acknowledged that the question of construction was not easy and was one on which minds might well differ, but concluded (at [25]) that the construction proposed by Mr Lam produced a result "so absurd, and so at odds with the apparent object of the provision, that an available construction which would avoid those difficulties [was] to be preferred". His Honour concluded (also at [25]) as follows: "Because both par (c) and par (d) of s 501A(1) are plainly intended to operate in respect of both decisions of a delegate and decisions of the Tribunal, par (c) should be given, if possible, a construction which encompasses the decisions which a delegate and the Tribunal are authorised to make in exercise of the power conferred by s 501. In neither case does that include, literally, a decision to grant a visa as a result of not exercising the power conferred by s 501(1). In each case a decision may be made in exercise of the power under s 501(1) which may be described as an exercise in favour (but, because other criterion [sic] must be satisfied, not conclusively in favour) of the grant of a visa. That, which is the sense for which the Minister contends, is the sense in which, in my view, the expression 'a decision to grant a visa' may and should be read."

our reasoning on the appeal 10 On the appeal, the competing constructions elicited supporting submissions which were generally similar to those made before Lehane J. However, as a consequence of recent amendments to par 501A(1)(c), it is unnecessary for the Court to address these submissions. 11 Several days after this matter was heard, the attention of the Court was drawn to the fact that as at the time of hearing the appeal, par 501A(1)(c) had been amended. This amendment was made by Act No. 129, 2001, entitled Migration Legislation Amendment Act (No 1) 2001 ("the Amendment Act"). The effect of the amendment is that subs 501A(1) now reads: "(1) This section applies if: (a) a delegate of the Minister; or (b) the Administrative Appeals Tribunal; makes a decision (the original decision): (c) not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or

(d) not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;

whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test." 12 The Amendment Act commenced operation on the date of assent which was 27 September 2001. Section 2 of the Amendment Act provides that the relevant amendment to par 501A(1)(c) is taken to have commenced retrospectively on 1 June 1999: see subs 2(4), and Part 1, Schedule 2 to the Amendment Act. 13 It is now common ground that if the amendment applies to the present appeal the appeal must be dismissed. 14 The parties were invited to lodge further written submissions in light of the amendment. Submissions have now been provided and they address the question as to whether the law as amended should be applied on the hearing of the appeal or whether the law to be applied on the hearing of the appeal is that actually in effect at the date the matter was heard and decided by Lehane J. The submissions raise the question as to whether an appeal from a single Judge of this Court to a Full Court is in the nature of a rehearing or is in the nature of an appeal in the strict sense, with the consequence that if the former is the position, the law as it was in force at the date of the hearing of the appeal is to be applied. In the case of a rehearing the law as at the date of the hearing before the Full Court is to be applied on appeal. 15 Strictly speaking, we do not consider that it is necessary to address the question raised in the further submissions as to the nature of an appeal to the Full Court because, in our view, the amendment to par 501A(1)(c) was clearly intended to have a retrospective effect and to operate both at the time of the first instance hearing and the hearing of the appeal. The consequence of this is that the law, which must be taken by us to have applied to the matter both before the primary Judge and this Court is the form of the law as varied by the amendment. It is well settled that the Court will give retrospective effect to legislation only where there is a clear indication from the legislature that such an approach must be taken, but in the present case, the language of the legislation is clear, unambiguous and specific, with the consequence that the law as amended must be applied on and from 1 June 1999. The order made by Lehane J was made on 1 September 2000 and the hearing before this Court occurred on 12 November 2001. Both dates are after the commencement of the Amended Act. Accordingly, we must deal with the matter as if the primary Judge was, and this Court is, bound to address the issue on the basis that the amended law was and is applicable. If that law is applied then the consequence is that the appeal must be dismissed. 16 Notwithstanding this result, we think it appropriate to address the question raised in the submissions as to the nature of an appeal to this Court from a primary Judge. We have been referred in the submissions to a number of authorities: see Duralla Pty Ltd v Plant (1984) 2 FCR 342 ("Duralla"); Western Australia v Ward (2000) 170 ALR 159 at [659]; CDJ v VAJ (1998) 197 CLR 172 ("CDJ") at 199, 201-202; Allesch v Maunz (2000) 203 CLR 172 ("Allesch"); Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 ("Jia") at [75] per Gleeson CJ and Gummow J and at [120] to a footnote by Kirby J, No 73. 17 The appellant's case is based on the contention that Duralla was correctly decided despite comments to the contrary in later authorities. 18 In Duralla the Full Federal Court held that an appeal to the Full Court was an appeal in the strict sense and not an appeal by way of a rehearing. That case concerned the effects of an amendment to the relevant provisions of the Building Units and Group Titles Act 1980 (Qld) which deemed a purchaser to have been aware of certain matters relevant to the purchaser's right to avoid a contract at the time of receipt of a notice. 19 In CDJ,the High Court was concerned with the question whether the Family Court had power, on appeal, to receive further evidence upon questions of fact by way of affidavits or oral testimony. At [111], in a joint judgment, McHugh, Gummow and Callinan JJ said: "Still another consideration is that the discretion is given to an appellate court hearing an appeal against an order made in the exercise of original jurisdiction. No doubt it is true that, because the appeal is by way of rehearing, the Full Court's jurisdiction is neither purely appellate nor purely original. … Appellate jurisdiction in the strict sense is jurisdiction to determine whether the order of the court below was correct on the evidence and in accordance with the law then applicable. In contrast, the Full Court of the Family Court must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal." 20 Earlier, at [100], the Court had emphasised that in contrast to the common law position, subs 93A(2) of the Family Law Act 1975 (Cth)and s 27 of the Federal Court of Australia Act 1976 (Cth) conferred on the Full Court of the Family Court, and the Full Court of the Federal Court respectively, an express power to receive further evidence and that the terms of the two provisions, although not identical, were similar in that they both conferred a power to be exercised by the Court in its discretion. Reference was made by their Honours to the expression "further evidence" rather than to "fresh evidence". At [101] the Court said that: "In making these provisions with respect to the Full Court of the Family Court and the Full Court of the Federal Court, the Commonwealth Parliament has assumed that the power derived from s 77(i) of the Constitution, in so far as it allows for the provision of an appeal within a federal court, extends to the provision of an appeal the characteristics of which differ from those of an appeal under s 73(ii) of the Constitution from a federal court to the High Court. No question arises here as to the correctness of that assumption." (Emphasis added) 21 The question as to the nature of an appeal to the Full Federal Court was not argued in CDJ. However, the relevant provisions of the Acts of the two Courts are substantially similar.The view expressed in the above joint judgment is that the appeal is a rehearing. 22 CDJ was referred to in Allesch. In Allesch the High Court considered the nature of an appeal to the Full Court of the Family Court from a single Judge. The Court followed and applied its earlier decision in CDJ that an appeal under s 94 of the Family Court Act 1975 (Cth) was an appeal by way of rehearing. At [23] the Court said: "For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand." 23 In Jia the principal judgment was given by Gleeson CJ and Gummow J (Hayne J agreeing with the reasons given by their Honours). At [75] their Honours said: "The appeal from French J to the Full Court was an appeal by way of rehearing; the relevant provision of the Federal Court of Australia Act 1976 (Cth) is not materially different from the provision of the Family Law Act 1975 (Cth) considered by this Court in Allesch v Maunz. It was not disputed that the principles as to reviewing a primary judge's findings of fact were as stated in Warren v Coombes." (Emphasis added) 24 At [120] Kirby J noted in a footnote that both sides in the proceedings had agreed that past authority in the Federal Court concerning the nature of an appeal for which the Federal Court of Australia Act 1976 (Cth) s 24 provides, was erroneous, and in particular, his Honour referred to the decision in Duralla. 25 The other member of the Court, Callinan J, did not address the question as to the nature of an appeal to the Full Federal Court from a single Judge. 26 Accordingly, the above recent authorities of the High Court support the proposition contended for by the respondent, namely, that an appeal to the Full Federal Court is an appeal by way of rehearing. Consequently the law applicable as at the date of the hearing of the appeal should be applied. Accordingly, the appeal must be dismissed. 27 In our discussion above of the nature of an appeal from a Judge of the Court to a Full Court, we have confined ourselves to addressing only the authorities to which we were referred in submissions. We note that in Cubillo v Commonwealth of Australia (2001) 183 ALR 249 at [258] a Full Court treated it as having been "authoritatively determined" by CDJ and Allesch that an appeal to a Full Court is by way of rehearing. Moreover, since counsel's written submissions were made, the question has been discussed in detail by Allsop J in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833. His Honour, with whom Drummond J and Mansfield J agreed, also reached the conclusion (at [20]) that an appeal from a single Judge to a Full Court was by way of a rehearing.

costs 28 The point on which the result of the appeal has turned (the Amendment Act) was not adverted to by counsel for either party at the hearing of the appeal and it became unnecessary for this Court to express an opinion on the correctness of the conclusion reached by Lehane J. In these circumstances we consider that the appropriate order in respect of costs is that there should be no order as to costs.

ORDER 29 The appeal is dismissed. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitors for the Appellant: Yandell Wright Stell

Counsel for the Respondent: J Basten QC and T Reilley

Solicitors for the Respondent: Australian Government Solicitor