Lu v Minister for Immigration & Multicultural & Indigenous Affairs

the applicant's contentions 14 During oral submissions, Mr Hurley, on behalf of the applicant, developed some of the grounds set out in the amended application. He also raised several new grounds, some of which had not been addressed in his written contentions. As I understood them, Mr Hurley's submissions, in their final form, were as follows.

the meaning of "original decision" in s 501A 15 Mr Hurley submitted that the Tribunal's decision of 4 July 2001 was not relevantly an "original decision" within the meaning of that expression in s 501A, and could not therefore form the basis of the Minister's decision to cancel the applicant's visa under that section. His argument, in substance, was that although the Tribunal had made a decision that appeared to fall within the terms of s 501A(1)(d), and therefore to constitute an "original decision", Parliament could not have intended a decision on appeal from the Minister personally to be so regarded. Otherwise, a decision by the Minister to cancel a visa would be reviewed by the Tribunal, which in turn, would have its decision not to cancel the visa further reviewed by the Minister. That would be both absurd and unfair. 16 Section 501A was inserted into the Act by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth) ("the Amendment Act"), and came into effect on 1 June 1999. It relevantly provides as follows: "(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. 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. … Minister's exercise of power (5) The power under subsection (2) or (3) may only be exercised by the Minister personally. … Decision not reviewable under Part 5 or 7 (7) A decision under subsection (2) or (3) is not reviewable under Part 5 or 7." 17 If Mr Hurley's submission that the Tribunal's decision of 4 July 2001 was not an "original decision" within the meaning of this section is correct, the Minister would lack power to set aside that decision the section. It would follow that he could not cancel the applicant's visa under s 501A(2)(b).

the character test 18 Mr Hurley next submitted that the Minister had applied the wrong "character test" when he reconsidered the Tribunal's decision. It was common ground that the Tribunal had to apply the "old" character test when it came to make its decision on 4 July 2001. See generally, s 501A and, in particular, the transitional provisions contained in Schedule 1 to the Amendment Act. Those provisions are as follows: "32 Transitional--review of adverse pre-commencement decisions under the Migration Act 1958 (1) Despite the amendments of sections 500 and 502 of the Migration Act 1958 made by this Act, those sections and the Administrative Appeals Tribunal Act 1975 continue to apply, in relation to a review of a decision made under section 501 of the Migration Act 1958 before the commencement of this item, as if: (a) those amendments had not been made; and (b) section 501 of the Migration Act 1958 had not been repealed by this Act. (2) The repeal and substitution of subsection 500(4) of the Migration Act 1958 made by this Act does not imply that an application may be made, or could have been made, to the Administrative Appeals Tribunal for review of a decision to which a certificate under section 502 of the Migration Act 1958 applies. 33 Transitional--setting aside and substitution of non-adverse pre-commencement decisions under section 501 of the Migration Act 1958 (1) This item applies if: (a) a delegate of the Minister; or (b) the Administrative Appeals Tribunal; makes, or has at any time made, a decision (the original decision): (c) to grant a visa to a person as a result of not exercising the power conferred by section 501 of the Migration Act 1958 (as in force at any time before the commencement of this item or as continued in force by item 32) to refuse to grant a visa to the person; or (d) not to exercise the power conferred by section 501 of the Migration Act 1958 (as in force at any time before the commencement of this item or as continued in force by item 32) to cancel a visa that has been granted to a person. (2) Section 501A of the Migration Act 1958 applies to the original decision in a corresponding way to the way in which it applies to a decision referred to in subsection 501A(1) of that Act." 19 Mr Hurley submitted that item 32(1)(b) made it clear that the "old" test was applicable in relation to a review of a decision made under s 501 that had been made before the commencement of the Amendment Act. Accordingly, the old test applied to the Tribunal's review, in July 2001, of the Minister's decision taken in October 1998. That view of item 32 was confirmed by the Explanatory Memorandum to what became the Amendment Act, which referred to sub-item 32(1) as ensuring that the existing merits review system continued to apply to decisions to refuse to grant or cancel a visa where the decision was made under existing s 501 of the Act (that is, prior to the commencement of the Amendment Act). 20 Mr Hurley contended, however, that when the Minister came to review the Tribunal's decision, under s 501A, he had erroneously applied the new character test. That test, which is now contained in s 501(6), was said to be "mechanical", being applicable if the person has a substantial criminal record, as defined by s 501(7). That subsection 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." 21 Mr Hurley submitted that the new character test stood in stark contrast with the old test, which was formerly contained in s 501 of the Act, prior to its amendment in 1998. That section provided for a two-stage process for a refusal to grant, or cancellation of, a visa. The first stage required a decision-maker to make a finding of fact as to whether a person was "not of good character". The second stage conferred upon the decision-maker a discretion to grant, or not to cancel, a visa, despite a finding that the person was not of good character. 22 According to Mr Hurley, the Issues Paper dated 11 March 2002 made it plain that he had applied the current provisions of the Act regarding the character test, rather than those that ought to have been applied. It was at least implicit in Mr Hurley's contentions that the applicant may have done better under the old character test than he did under the new character test. 23 Mr Hurley relied primarily upon item 33(2) in support of his contention that the Minister ought to have applied the old character test. He submitted that because item 32(1)(b) required the Tribunal to apply the old character test, and item 33(2) rendered the new power under s 501A applicable to the "original decision" "in a corresponding way" to the way in which it applied to a decision referred to in s 501A(1), the same test had to be applied by the Minister as had been applied by the Tribunal.

Other jurisdictional errors 24 Mr Hurley argued that the Minister's decision was invalid because it failed to take into account matters that he was bound to take into account. These included the Tribunal's reasons (which appear not to have been before the Minister), and the fact that the only reason the Minister could revisit that decision was because of his own previous error in having granted an invalid certificate. 25 In addition, Mr Hurley complained that the Minister had been given erroneous information about the applicant's criminal history. The Issues Paper stated at par 4 of Part B that the applicant had received: "[a] [t]otal sentence for drug offences in 1993 and 1997 [of] 9 months served concurrently with his prison term". 26 At par 22 of Part B of the Issues Paper, the Minister was told: "The resultant sentences [the sentences for the 1993 and 1997 drug offences] were to be served cumulatively with the main sentence." 27 In fact, the applicant received three sentences of one month each, wholly concurrent. He had been convicted before the Bathurst Local Court on 28 June 1993, and fined a total of $800.00 for possession and use of cannabis. He had also been convicted before the Glen Innes Local Court on 24 February 1997, and sentenced to a term of one month's imprisonment for possession of a prohibited drug, one month's imprisonment for possession of equipment for self-administration, and one month's imprisonment for self-administration. All three sentences were to take effect from 24 September 1997, and were to be served concurrently. Obviously, the person who prepared Part B of the Issues Paper had failed to appreciate the disconformity between what was contained in pars 4 and 22. 28 Mr Hurley also argued that the Minister's decision should be quashed because, at the time he made it, the Issues Paper informed him, erroneously, that the original character decision, taken some years previously, had been made by a delegate. In truth, the Minister himself had made that decision. 29 Mr Hurley next submitted that the Minister had failed to have regard to a relevant consideration, namely the fact that the applicant had been singled out for discriminatory treatment. At the very least, he ought to have provided reasons as to why the applicant's co-offenders had been permitted to remain in this country. 30 Finally, Mr Hurley argued that, taken cumulatively, the matters raised showed that the Minister had not given genuine and realistic consideration to the applicant's case. He also submitted that the Minister had acted in bad faith, and that the decision was unreasonable in the Wednesbury sense. See Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223.

Equity 31 Mr Hurley argued that even if jurisdictional error could not be shown, the applicant was entitled to injunctive relief under ordinary principles of equity. He submitted that it would be unconscionable to allow the Minister to exercise a power to cancel the applicant's visa, under s 501A, when that power could never have been invoked had the Minister not previously erred in issuing an invalid "excluded person" certificate. The applicant, having succeeded on merits review before the Tribunal, was entitled to retain the fruits of that success. 32 Mr Hurley cited several cases in support of this argument. He referred to Nocton v Lord Ashburton [1914] AC 932 at 953; Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited (1998) 194 CLR 247 at 258; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 144 and 157-8; and Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 551-552. These cases discussed the role that equitable remedies might play in public and administrative law. Mr Hurley also referred to a paper by Justice French titled "The Equitable Geist in the Machinery of Administrative Justice", presented to an Australian Institute of Administrative Law seminar on Recent Developments in Administrative Law, in Sydney, on 22 May 2003, and published in AIAL Forum, No. 39, September 2003, pp 1-17. 33 Mr Hurley submitted that equity would grant relief against "equitable fraud", which included the exercise of a discretionary power in circumstances where that exercise would be unreasonable, or would constitute a fraud on the power. He claimed that there had been a fraud on the power in this case because of the various matters previously identified as giving rise to jurisdictional error.

the meaning of "original decision" in s 501A 34 Mr Star, on behalf of the Minister, submitted that Mr Hurley's argument regarding the meaning of the expression "original decision" in s 501A(1)(b) was misconceived. The decision that was the subject of review before this Court was a decision by the Minister to cancel the applicant's visa pursuant to s 501A(2)(b). That provision conferred upon the Minister the power to set aside "the original decision", being a decision of the Tribunal not to exercise the power conferred by s 501(2) to cancel the applicant's visa. Any decision by the Tribunal that met that description was an "original decision" as defined by s 501A. 35 Mr Star submitted that the transitional provisions contained in the Amendment Act did not assist the applicant. Item 33 could not be invoked, in the manner for which Mr Hurley contended, to alter the ordinary and natural meaning of the expression "original decision". There was no justification for reading into s 501A(1)(b) words of limitation that were plainly not there. Accordingly, the Minister had power to cancel the applicant's visa. 36 Mr Star supported his argument by reference to the Explanatory Memorandum to what became the Amendment Act. He referred in particular to pars 114, 117 and 118 of that Memorandum. He also submitted that Mr Hurley's argument could not be reconciled with the policy underlying the Amendment Act. Mr Hurley had assumed, incorrectly, that the legislature could not have intended to allow the Minister to exercise his power under s 501A in relation to a decision by the Tribunal that had set aside an earlier decision that the Minister had personally made. According to Mr Hurley, this would create an appeal from "Caesar to Caesar". 37 However, Mr Hurley's submission was misconceived because it ignored the fact that the Minister's decision under s 501A would always be subject to judicial review. It was no quirk, or unintended result of the transitional provisions, that the Minister was able to exercise the power under s 501A in relation to the Tribunal's decision. That would also have been the case if, for example, the Minister had chosen not to issue a certificate under s 502 when he personally made the original cancellation decision in 1998.

the character test 38 Mr Star submitted that the Minister had correctly applied the "new" character test on 14 March 2002, when he decided to cancel the applicant's visa. He, like Mr Hurley, relied on item 33(2) in support of his contention. Mr Hurley had submitted that it made no sense to have the Tribunal apply the "old" character test, and the Minister, on reconsideration, the "new" one. Mr Star, however, submitted that item 33(1) preserved the old character test for the Tribunal, once it had been established that a valid "excluded person" certificate had not been granted. Item 33(2), when given its ordinary and natural meaning, made it plain that the new test was to be applied when the Minister exercised the power under s 501A. 39 Mr Star's referred to par 118 of the Explanatory Memorandum, which observed that item 33 specified that s 501A applied to the original decision, and provided for the Minister acting personally to set it aside, and substitute another. Before the Amendment Act came into force, there had been no s 501A. Plainly, therefore, it was the new regime under the Amendment Act that governed the exercise of the Minister's power. There was no justification for reading into the transitional provisions, or s 501A, words of limitation of the kind for which Mr Hurley contended.

Other jurisdictional errors 40 Mr Star submitted that none of the matters relied upon by Mr Hurley established jurisdictional error. He began by submitting what is perhaps trite, namely that this was an application for judicial review, and that the merits of the relevant decision were for the Minister, and not for this Court. He contended that a number of the arguments put forward by Mr Hurley did, in fact, invite merits review. 41 Mr Hurley's contention that the Minister had failed to take into account relevant considerations had to be assessed in light of the well-known observations of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-41. In particular, this ground could only be made out if the Minister had failed to take into account a consideration that he was bound to take into account in making his decision. The factors that the Minister was bound to consider in making that decision were to be determined by construing the statute conferring the discretion. If the relevant provision stated the considerations to be taken into account expressly, the Court would have to determine whether these were exhaustive. If they were not exhaustive, the Court would have to determine whether the matter, scope and purpose of the Act required, by implication, any additional considerations to be taken into account. 42 Mr Star noted that s 501A did not refer expressly to any of the matters that Mr Hurley contended had been disregarded. Nor was the Minister required to have regard to them by reason of any implication to be drawn from that section, or the Act as a whole. He relied in particular upon the observations of French J in W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398, which he submitted contained an accurate summary of the relevant principles at [32]. 43 Mr Star submitted that the special position of the Minister, as the decision-maker, had to be taken into account. He referred to Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 as support for that proposition. 44 Mr Star then turned to the errors contained in the Issues Paper regarding the applicant's criminal history. He submitted that no inference of bad faith could be drawn from those errors. He referred to SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 where the Full Court observed that it was a large step to jump from a decision involving errors of fact to a finding that the decision-maker had acted in bad faith. He referred also to Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 where another Full Court said that there was no such thing as "deemed or constructive bad faith". In substance, he submitted that mistakes happen, but that did not mean that a decision made in circumstances where erroneous facts had been placed before the decision-maker was necessarily invalid. 45 More fundamentally, Mr Star submitted that the errors made by the author of the Issues Paper could not have affected the exercise of the Minister's discretion. The offences involving cannabis, committed whilst the applicant was in prison, paled into insignificance when compared with the armed robbery, and the various other offences that he had committed. Whether the applicant was sentenced to nine months' imprisonment or one month, and whether that sentence was cumulative or concurrent, did not matter in the least so far as the Minister was concerned. Mr Star referred in that regard to the observations of French J in Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [55]-[79]. 46 Mr Star challenged Mr Hurley's contention that the applicant had been "singled out" for special treatment. There was nothing to support that contention. The position of the co-offenders may have been quite different to that of the applicant, either because of their antecedents, or because their prospects of rehabilitation were significantly greater than his. In addition, there may have been other matters that influenced the decision, in their cases, not to have them removed. 47 Finally, Mr Star submitted that there was no substance in Mr Hurley's "cumulative" Wednesbury unreasonableness point. He referred to the recent decision of the High Court in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327 at [30] and [62]. He submitted that it could not be said in this case that the Minister had reached a decision that was so unreasonable "that it might almost be described as being done in bad faith" or "so absurd that no sensible person could ever dream that it lay within the powers of the [minister]".

Equity 48 The last point dealt with by Mr Star was Mr Hurley's contention that injunctive relief should be available even if the Minister's decision was not affected by jurisdictional error. He submitted that there was no substance in this point. He argued that if jurisdictional error could not be demonstrated, the applicant's claim would really amount to merits review under the guise of equitable relief. 49 Mr Star accepted that there might be circumstances where equitable relief could be granted where, for one reason or another, prerogative relief might not be available. He submitted, however, that this did not mean that an injunction could be granted as a freestanding remedy. There had to be a cause of action that was cognisable, and nothing short of jurisdictional error would suffice. 50 Mr Star acknowledged that it might theoretically be possible that equitable relief could be granted in circumstances where, by reason of his or her own failure to comply with the requirements of a statute, a decision-maker became empowered to reconsider an individual's case, to the detriment of that individual. However, he submitted that such relief was not warranted in the present case. Moreover, even assuming that what Mr Hurley put regarding the Minister having taken advantage of his own error was correct, it did not merit treating the Minister's decision as "unconscionable".

the meaning of "original decision" in s 501A 51 The Tribunal's decision seems to me to fall squarely within the expression the "original decision" in s 501A(1). That expression takes its meaning from s 501A(1)(c) and (d). Mr Hurley seeks to have a qualification or gloss placed upon the expression, such that the Tribunal's decision, having been made in relation to an earlier decision of the Minister that predated the commencement of the Amendment Act, should be immune from reconsideration by the Minister. 52 There is nothing in the language of s 501A, or the transitional provisions contained in the Amendment Act, to support that construction. The expression "original decision", as defined in s 501A, should be given its ordinary and natural meaning. It follows that the Minister had power to reconsider the Tribunal's decision. 53 Mr Hurley's references to Caesar sitting in judgment upon Caesar are evocative. However, they do not assist in the construction of the Act. Whether, as a matter of policy, the Minister should be permitted to set aside a decision of the Tribunal that had previously set aside the Minister's decision is a matter for the legislature, and not for this Court.

the character test 54 I accept the respondent's submissions regarding this matter. In my view, the question is simply one of construction. It is a matter for the Parliament as to which version of the character test the Minister should apply when exercising the power under s 501A. Both item 33(2) of the Schedule to the Amendment Act and pars 114, 117 and 118 of the Explanatory Memorandum support the view that the Minister, on reconsideration under s 501A, should apply the new character test. That is precisely what he did. 55 I should add that even if the Minister had erred in applying the wrong character test, it would not follow that the application for review would succeed. There is no great difference between the two tests. If it were clear that the Minister would inevitably have cancelled the applicant's visa under the old test, as well as under the new test, it would be futile to remit this matter for reconsideration. The case for cancelling the visa was a powerful one, irrespective of which test was applied.

Other jurisdictional errors 56 I accept that there may be some substance in Mr Hurley's complaints regarding the provision of inaccurate information to the Minister concerning the applicant's criminal history. There is no excuse for the Minister to be provided with information that is other than completely accurate regarding matters of this kind. It ought to be relatively simple for officers of the Department to obtain accurate records of the criminal history of any person whose removal from Australia on character grounds is in question. Any officer given the task of preparing an Issues Paper for the Minister should certainly be aware of the difference between sentences that are cumulative, and those that are concurrent. 57 In some cases, erroneous information regarding a person's antecedents might lead to the invalidity of a decision to remove that person on character grounds. In the present case, however, the objective facts strongly suggest that the matters that were erroneously placed before the Minister played little, if any, role in his decision. It was the very serious offences committed in 1990, coupled with the fact that some of those offences were committed whilst the applicant was on bail, that plainly swayed the Minister, and not the cannabis offences committed at a later time. 58 I reject the contention that the applicant was "singled out". It is entirely possible that there were differences between his position, and that of his co-offenders, that explained why the Minister did not order their removal. There is simply no evidence, or other material, before the Court on this subject. 59 I do not propose to deal at length with the other matters raised by Mr Hurley. The Minister was not "bound" to take into account, when making his decision under s 501A, that he had previously cancelled the applicant's visa and issued an erroneous "excluded person" certificate. Nor was he "bound" to take into account that but for his error, the opportunity to invoke the s 501A discretion may not have arisen. There is nothing in s 501A, or in the structure or text of the Act that suggests that these matters, or any others identified by Mr Hurley, had to be taken into account. 60 The fact that the Issues Paper wrongly informed the Minister that the earlier decision had been taken by a delegate, rather than by him personally, was of no consequence. There is nothing approximating Wednesbury unreasonableness, or bad faith, in the Minister's decision. The applicant had a lengthy criminal history, including some offences that were very serious. It was open to the Minister to conclude, as he did, that the applicant should be removed on character grounds. I accept the respondent's submissions in relation to each of these matters. I accept, in particular, the submission that some of the matters raised invite merits review.

equity 61 Mr Hurley's submission is, so far as I am aware, novel. It invites merits review under the guise of seeking equitable relief. I do not think that any of the authorities to which he referred support his contention. In the absence of any authority that binds me to accept his contention, I reject it.

conclusion 62 In short, although I accept that there are aspects of this case that are troubling and, in particular, that the Issues Paper was prepared carelessly, and contains several errors of a factual nature, I am not persuaded that the applicant has made good his claim for judicial review. In my opinion, none of the errors contained in the Issues Paper influenced the Minister's decision in any way. None of the other matters that Mr Hurley raised give rise to jurisdictional error. Accordingly, the application will be dismissed. The applicant must pay the respondent's costs. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Solicitor for the Respondent: Australian Government Solicitor