Lesi v Minister for Immigration & Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 These proceedings were commenced by application seeking judicial review of a decision made by the Honourable Gary Hardgrave MP as a delegate of the respondent on 8 October 2002 to refuse to reinstate or re-issue the applicant's residence visa. The application was made under s 39B of the Judiciary Act 1903 (Cth) and also under ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). However, in the circumstances described below at [14] - [17], the application was amended at the hearing to seek only a declaration "that the grant by the respondent to the applicant of permission to remain indefinitely in Australia made 24 October 1996 remains in force". On 24 October 1996 the applicant had been granted a prospective marriage spouse visa, subclass 831, which permitted him to remain in Australia indefinitely, and permitted multiple travel. 2 The parties tendered a statement of agreed facts as follows: "1. Mr Lesi is an Albanian national born in Velipoj, Albania on the 2nd September 1968. 2. In 1994 Mr Lesi formed a relationship with a Ms Mema who is an Australian resident. Ms Mema sponsored Mr Lesi in an application to migrate to Australia and he entered Australia on a Prospective Marriage Visa on the 4th September 1996. 3. On the 24th October 1996 Mr Lesi's application for a residence visa was approved and he was granted a visa subclass 831. 4. In February 1997 Mr Lesi's relationship with Ms Mema broke down and in 1997 he met his current partner, Aileen Cebreros. 5. In March 1998 Mr Lesi was apprehended by police whilst driving along South Road in Adelaide. He was found to be in possession of heroin and was charged with two counts of possessing heroin for sale. He was also charged with unlawful possession offences in relation to monies seized by the police. 6. On May 1998 Mr Lesi and Ms Cebreros' first child, Belinda, was born in Adelaide. 7. On the 19th October 1998 Mr Lesi pleaded guilty to two counts of possessing heroin for sale. He was sentenced to four years imprisonment commencing on the 19th October 1999 with a non-parole period of two years. 8. In January 2000 the Manager of the Compliance Section of Department of Immigration, Multicultural and Indigenous Affairs (the Department) prepared a Memorandum for the consideration of the Minister for Immigration Multicultural and Indigenous Affairs (the Minister) regarding proposed deportation of Mr Lesi under s 200 of the Migration Act. 9. On the 8th February 2000 the Minister made a decision that Mr Lesi was liable for deportation under s.201 of the Migration Act 1958, and that he should be deported under s.200 of the Migration Act. The Minister signed a Deportation Order and indicated that a s.502 Certificate should be issued. 10. On the 8th February 2000 the Minister signed a Deportation Order under s 200 of the Migration Act 1958. 11. On the 8th February 2000 the Minister signed a document which purported to be a Certificate under subsection 502(1) of the Migration Act declaring Mr Lesi to be an "Excluded Person". 12. On the 12th April 2000 the Department delivered to Mr Lesi the Notification of Deportation. He sought review of the decision to depart [sic] by the Federal Court. 13. On the 6th May 2000 Mr Lesi and Ms Cebreros' second child, Edmario, was born. 14. On the 4th September 2000 the Federal Court decided that there were no grounds upon which the decision to deport Mr Lesi could be set aside or remitted. 15. On 18th October 2000, the applicant was informed by an officer of the Department that he would be removed from Australia on 19 October 2000. 16. On the 19th October 2000 the applicant was removed from Australia. He was accompanied by his wife and two children. 17. In Albania, Mr Lesi and Ms Cebreros and the children took up residence in Mr Lesi's parents home in Velipoj, Shkoder, Albania. 18. On the 20th February 2001, the Department forwarded a letter to the applicant in Velipoj Shkoder, Albania. The letter referred to the decision of the Full Federal Court in the matter of Karm Singh and advised the applicant that as a result of the Full Federal Court decision in Singh, the decision to deport him may now be reviewable in the AAT. The applicant was advised that the person who makes the application must be an Australian citizen or lawful non-citizen and must also be someone whose interests are affected by the decision. 19. Ms Cebreros is an Australian citizen. She returned to Australia with the children for the purpose of pursuing an appeal in the AAT. 20. Ms Cebreros lodged an appeal in the AAT on 5 July 2001. 21. On the 10th July 2001, senior member J A Kiosoglous MBE made a direction that the time for the making of an application for a review of the decision of the respondent be extended to 29 June 2001. 22. On the 3rd April 2002 Tribunal Member Ms S A Forgie made a decision to: (1) set aside the decision of the respondent dated 8th February 2000; and (2) substitute a decision that the applicant not be deported from Australia. 23. The Minister was represented at the Administrative Appeals Tribunal hearing. No appeal was made by the Minister against the Orders of the Tribunal. 24. On the 13th May 2002, the solicitors for Ms Cebreros and Mr Lesi wrote to the Minister requesting that he reinstate Mr Lesi's visa. 25. On the 3rd October 2002 [sic - 8 October 2002] the Honourable Gary Hardgrave MP forwarded a letter to the solicitors for Ms Cebreros and Mr Lesi indicating that it is the Department's view that Mr Lesi was validly deported." 3 The legislative provisions of the Migration Act 1958 (Cth) (the Act) referred to in par 9 of the agreed facts provide as follows: "200 Deportation of certain non-citizens The Minister may order the deportation of a non-citizen to whom this Division applies. 201 Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes Where: (a) a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence; (b) when the offence was committed the person was a non-citizen who: (i) had been in Australia as a permanent resident: (A) for a period of less than 10 years; or (B) for periods that, when added together, total less than 10 years; or (ii) was a citizen of New Zealand who had been in Australia as an exempt non-citizen or a special category visa holder: (A) for a period of less than 10 years as an exempt non-citizen or a special category visa holder; or (B) for periods that, when added together, total less than 10 years, as an exempt non-citizen or a special category visa holder or in any combination of those capacities; and (c) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year; section 200 applies to the person." 4 Ordinarily, by virtue of s 500(1) of the Act, a deportation decision made under s 200 is reviewable by the Administrative Appeals Tribunal (AAT). However, that sub-section excludes from review "decisions to which a certificate under section 502 applies". Section 502 reads: "502 Minister may decide in the national interest that certain persons are to be excluded persons (1) If: (a) the Minister, acting personally, intends to make a decision: (i) under section 200 because of circumstances specified in section 201; or (iii) to refuse to grant a protection visa, or to cancel a protection visa, relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2); in relation to a person; and (b) the Minister decides that, because of the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person; the Minister may, as part of the decision, include a certificate declaring the person to be an excluded person. (2) A decision under subsection (1) must be taken by the Minister personally. (3) If the Minister makes a decision under subsection (1), the Minister must cause notice of the making of the decision to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the decision was made." 5 It is implicit from the statement of agreed facts, and from the decision of the Federal Court referred to in par 14 (Lesi v Minister for Immigration & Multicultural Affairs [2000] FCA 1882, O'Loughlin J), that the applicant in 2000 believed that the Minister had included a certificate under s 502 as part of the deportation decision, and accordingly that he could not seek review of the deportation decision by the AAT. 6 The reference to the decision of the Full Court of the Federal Court referred to in par 18 of the agreed facts is a reference to Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 1426; (2000) 105 FCR 453 (Singh). That decision was handed down on 13 October 2000. 7 The form of the deportation decision and order made under s 200 of the Act, and the purported certificate under s 502 considered by the Full Court in Singh, were in precisely the same form as the decision, order and certificate made in respect of the applicant in the present case. Relevantly, the certificate in respect of the applicant read: "CERTIFICATE I, Philip Ruddock, Minister for Immigration and Multicultural Affairs, having decided that, because of the seriousness of the circumstances giving rise to my decision to deport BERNARD LESI under section 200 of the Migration Act 1958 because of circumstances specified in section 201, it is in the national interest that BERNARD LESI be declared an excluded person in accordance with subsection 502(1) of the Migration Act 1958. Dated this 8th day of February 2000. [signed] Philip Ruddock Minister for Immigration and Multicultural Affairs" 8 In Singh, the Full Court held that a document in those terms did not constitute "a certificate declaring the person to be an excluded person" within the meaning of s 502(1) of the Act. Wilcox J (with whom Spender J agreed) said at [28]: "Upon close scrutiny, it will be observed it (the purported certificate) consists only of a recital of the decision of the Minister to make the certificate. But there is no certificate; the document is incomplete. It fails to contain 'a certificate declaring the person to be an excluded person; as required by s 502(1)(b) of the Act." Emmett J was of the same opinion at [64]. 9 The Full Court recognised that as there was no certificate under s 502, it was open to Mr Singh to apply to the AAT for review of the deportation decision: [37] and [75]. Although it was held that there was no s 502 certificate, the Full Court held that the deportation order under s 200 was not thereby invalidated: see the express finding to this effect by Wilcox J at [33] - [34]; and a like finding by Emmett J is implicit at [75]. 10 As the agreed facts recite, an application for review of the deportation order was made to the AAT by the applicant's wife, an Australian citizen. The application was successful, and on 3 April 2002 the AAT set aside the deportation order and substituted a decision that the applicant not be deported from Australia. In the letter dated 13 May 2002 referred to in par 24 of the agreed facts, solicitors for the applicant and his wife put forward detailed arguments in support of the proposition that the deportation order was invalid, and that the applicant should not have been deported. 11 The response by the Honourable Gary Hardgrave MP in his letter of 8 October 2002, on behalf of the respondent, said that the view of the Minister's department was that the applicant had been validly deported, and that the Full Court decision in Singh was clear in its finding that the failure to issue a valid certificate under s 502 had no effect on the validity of the deportation order. The letter concluded by saying: "Mr Lesi is clearly a person who was validly deported in accordance with s200 of the Migration Act 1958 and therefore he cannot meet special return criterion 5001." 12 Special return criterion 5001 appears in Schedule 5 to the Migration Regulations 1994, and provides: "5001 The applicant is not: (a) a person who left Australia while the subject of a deportation order under: (i) section 200 of the Act …" 13 The special return criterion is one that must be fulfilled to empower the grant of a visa of any of the kinds for which the applicant might otherwise have been eligible to apply, were he to apply afresh for a visa to enter Australia.