Minister for Immigration and Multicultural Affairs v Dunne

Legislative Provisions 6 As is mentioned above, Mr Dunne lodged his application for the spouse EETEP on 16 February 1990. Regulation 34A of the Migration Regulations 1989 provided as follows: "34A An applicant for a visa or an entry permit must satisfy the prescribed criteria in relation to the relevant class of visas or entry permits (other than public interest criteria and prescribed health criteria) at the time of application and as applicable at that time." 7 The criteria for the spouse EETEP were set out in regulation 126 of the Migration Regulations 1989 as retrospectively amended by regulation 29 of the Migration Regulations (Amendment) (Statutory Rules 1990 No. 75) which is taken to have commenced on 19 December 1989. Regulation 126(1), as so amended, provided as follows: "126(1) The prescribed criteria in relation to an extended eligibility (spouse) entry permit are that, at the time when the application is decided: (a) the applicant is the spouse of an Australian citizen or Australian permanent resident and was the spouse of that citizen or resident at the time when the application was lodged; and (b) the applicant's relationship with the spouse is a genuine and continuing one; and (c) the applicant meets the prescribed health criteria specified in item 9 in Schedule 1 and the public interest criteria; and (d) the applicant is not an illegal entrant (other than an illegal entrant to whom paragraph 42 (1C)(a), (b) or (c) applies)." 8 Regulation 42 (1C)(a), (b) or (c) of the Migration Regulations 1989 have no application to Mr Dunne. 9 Regulation 4 of the Migration Regulations 1989, relevantly provided that: "4.(1) For the purposes of these Regulations, a person is to be taken not to be of good character if: (a) in the case of an applicant for a visa or entry permit of any class: (i) ….. (ii) the applicant: (A) has at any time been convicted of a crime and sentenced … to imprisonment for a period of not less than one year; or (B) has at any time been convicted of 2 or more crimes and sentenced to imprisonment for a period totalling not less than one year; or …." 10 Regulation 143 of the Migration Regulations 1989 provided for the avoidance, in certain circumstances, of the impact of the provisions of regulation 4. Regulation 143 provided, so far as is here relevant: "143 Notwithstanding any other provision of these Regulations, the Minister may grant a visa or an entry permit to an applicant who fails to satisfy public interest criteria only because the applicant is to be taken not to be of good character, if: (a) the Minister is satisfied that: (i) … (ii) in the case of conduct referred to in subparagraph 4(a)(ii) … - the applicant has shown by subsequent conduct that he or she is reformed; (b) the Minister is satisfied that undue harm would be unlikely to result to the Australian community if the visa, or entry permit was granted; … It is not in dispute that the above criteria provided by regulation 143 are cumulative in effect. 11 It is also not disputed that Mr Dunne was at the time of his application for a spouse EETEP an illegal entrant. However, at the relevant time, regulation 35AA of the Migration Regulations 1989 provided: "35AA(1) The Minister may, subject to subregulation (2) and regulation 25, but in spite of any other provision of these Regulations, grant a temporary entry permit to a person who is an illegal entrant if: (a) (not here relevant); or (b) in the case of a person who entered Australia before 19 December 1989, not being a person referred to in paragraph (a): (i) the person applies for the entry permit not later than 16 February 1990; and (ii) the person satisfies the prescribed criteria in relation to the relevant class of entry permits (other than, if applicable, the prescribed criterion that the person is the holder of a valid temporary entry permit); and (iii) the Minister is satisfied that there are compelling reasons for granting the entry permit; or (c) (not here relevant). (2) The Minister is not to grant an entry permit to a person under subregulation (1) on more than one occasion. (3) This regulation ceases to be in force on 30 June 1990." 12 It was not contended by the Minister that regulation 35AA(3) had any relevance to this application.

Consideration 13 Mr Dunne faced two apparent difficulties in obtaining a spouse EETEP. The first difficulty was that by reason of regulation 4 of the Migration Regulations 1989 he was a person to be taken not to be of good character. Unless the decision-maker exercised the power granted by regulation 143 of the Migration Regulations 1989 he could not meet the public interest criteria that he "is of good character" (reg 2 of the Migration Regulations 1989). The second difficulty was that as an illegal entrant he could only be granted a spouse EETEP if the decision-maker exercised the power created by regulation 35AA of the Migration Regulations 1989.

The Nature and Exercise of Discretionary Power 14 The Tribunal in its written reasons for decision expressed the view that "[t]he 'good character' requirement may be waived under regulation 143 of the 1989 Regulations". For the reasons given below, I do not regard this as a strictly accurate description of the power given to a decision-maker by regulation 143 of the Migration Regulations 1989. The Tribunal set out in its reasons for decision the terms of regulation 143 in full. The Tribunal expressed its satisfaction that the applicant has shown by subsequent conduct that he is reformed and that undue harm would be unlikely to result to the Australian community if the entry permit were granted to him. There is no challenge to the process of reasoning which led the Tribunal to be satisfied of each of these matters. However, the Minister contended that - "the Tribunal failed to appreciate that it retained a residual discretion as to whether or not to grant the permit even if the pre-requisites for the exercise of the power were met and, hence, it also failed to consider whether or not to exercise the discretion." 15 The first issue to be determined on this application is thus whether the power granted by regulation 143 is a true discretionary power or whether, having regard to the nature of the power, its legislative context, and the conditions under which it may be exercised, it is the duty of the person in whom the power is reposed to exercise it when such conditions are satisfied (Julius v Lord Bishop of Oxford (1880) 5 App. Cas. 214 at 222-223). 16 In Commissioner of State Revenue (Victoria) v Royal Insurance Australia Limited (1994) 182 CLR 51 at 84-85 Brennan J, with whom Toohey and McHugh JJ agreed, stated: "The question of whether the repository of a discretionary power is under a duty to exercise the power depends upon the intention of the legislature as revealed in the language of the statute and, in ascertaining that intention, there is a prima facie presumption "that permissive or facultative expressions operate according to their ordinary natural meaning". Therefore, if the facultative term "may" is used in the creation of a power, it does not in itself impose a duty to exercise the power but such a duty may be found in the statutory context in which the power is created. Thus, where a power is conditioned upon the existence of an event or upon the formation of a particular opinion by the repository of the power, the condition may sometimes be taken to specify the circumstances in which the power must be exercised." (footnote omitted) 17 The statutory provision under consideration in Commissioner of State Revenue (Victoria) v Royal Insurance Australia Limited was s 111(1) of the Stamps Act 1958 (Vic) which relevantly provided as follows: "Where the Comptroller finds in any case that duty has been over-paid … he may refund to the company, person or firm or firms which or who paid the duty the amount of duty found to be overpaid." 18 Having regard to the statutory history of s 111(1) of the Stamps Act 1958 (Vic) and related provisions, Brennan J considered that s 111(1) created a discretionary power in the Comptroller to refund monies over-paid and that she was under no duty to exercise such power unless the statute imposed on her an antecedent liability to refund such monies. 19 In Finance Facilities Pty Limited v Federal Commissioner of Taxation (1971) 127 CLR 106 the majority of the High Court considered a provision in the Income Tax Assessment Act 1936 (Cth) which provided that "[s]ubject to the succeeding provisions of this section, the Commissioner may allow … a private company … a further rebate in its assessment" if the Commissioner is satisfied of one of several specified factual matters. The majority of the High Court (Barwick CJ, Windeyer and Owen JJ) held that the provision required the Commissioner to allow the further rebate if he were satisfied of facts giving rise to the power to allow the further rebate. 20 The above authorities illustrate the importance of giving careful consideration in this case to the nature of the power given to a decision-maker by regulation 143 of the Migration Regulations 1989. The power contained in regulation 143 was not, strictly speaking, a power to waive the good character criterion for the grant of a visa or entry permit. The regulation authorised the grant of a visa or entry permit to a person who failed to satisfy public interest criteria only because the applicant was to be taken not to be of good character (reg. 4). 21 As Lee J pointed out in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431, the words "good character" ordinarily refer to "the enduring moral qualities of a person" rather than to his or her "standing, fame or repute" in the community. So a person who has been convicted of a serious offence may have repented and become of good character; and a person of high standing in the community may be in truth of poor character. Regulation 143 may be considered to have reflected an appreciation that a person who was by reason of regulation 4 "to be taken not to be of good character" may nonetheless have been of good character. Nonetheless, regulation 143 itself said nothing directly on the issue of whether any applicant was or was not of good character. For the reasons given below, it did not authorise a decision-maker to waive the good character criterion for the grant of a visa or entry permit. 22 For an applicant for a visa or entry permit to satisfy public interest criteria, he or she had to satisfy the criterion that he or she "is of good character" (see the definition of "public interest criteria" in regulation 2 of the Migration Regulations 1989). Ordinarily, where an applicant was "to be taken not to be of good character" by reason of regulation 4 of the Migration Regulation 1989 there was no need for a decision-maker to determine whether the applicant was in fact of good character. However, the position changed if regulation 143 was to be invoked. Regulation 143 had an application only in respect of "an applicant who fails to satisfy public interest criteria only because the applicant is to be taken not to be of good character." Before an applicant can be said to have failed to satisfy public interest criteria only because he or she is to be taken not to be of good character, he or she must have satisfied the criterion that he or she "is of good character." If an applicant would not have satisfied the criteria that he or she "is of good character" irrespective of regulation 4, he or she is not "an applicant who fails to satisfy public interest criteria only because the applicant is to be taken not to be of good character." 23 Once placed in its proper context, there is, in my view, some strength in the contention that there was a duty reposed in the decision-maker to exercise the power given to him or her by regulation 143 when the conditions which governed its use were satisfied. Such conditions would have been, in the case of a person convicted of a serious crime, that: (a) the decision-maker was satisfied that the applicant had shown by subsequent conduct that he or she had reformed; (b) the decision-maker was satisfied that undue harm would be unlikely to result to the Australian community if the visa or entry permit were granted; and (c) if regulation 4 was put to one side, the applicant met all public interest criteria including that he or she "is of good character." 24 However, having regard to the prima facie presumption "that permissive or facultative expressions operate according to the ordinary natural meaning", the nature of the power to grant a visa or entry permit under the Act and the exercise of judgment involved in the notion of "good character", I have concluded that regulation 143 is not to be construed as imposing on a decision-maker a duty to exercise the power given by the regulation when the conditions which govern the exercise of such power are satisfied. This view would appear to be consistent with views expressed in Irving v Minister for Immigration, Local Government and Ethnic Affairs per Davies J, with whom RD Nicholson J agreed, at 424 and per Lee J at 430 - although it does not appear that the point that I am now considering was argued in that case. 25 Nonetheless, the discretion granted by regulation 143 was one which was to be exercised by the relevant decision-maker having regard to the scope, subject matter and purpose of the relevant statutory provisions. It may be expected that there would be a limited number of cases in which the conditions which govern the exercise of the discretion were satisfied but the discretion was not exercised in favour of the applicant. 26 Turning to the decision of the Tribunal under review in this case, the written reasons of the Tribunal disclose that it considered carefully whether the pre-requisites for the exercise of the power given by the regulation were met, and then turned immediately to give consideration to another matter. I am not able to accept the submission of Mr Dunne that the Tribunal, which set out in its reasons for decision the full terms of regulation 143, and observed that "[t]he 'good character' requirements may be waived" is to be presumed to have taken the step of considering whether or not to exercise the discretion given to it by the regulation. The Tribunal was plainly conscious of its obligation to provide written reasons for its decision and its failure to refer in its written reasons to the taking of such a step, and thus to any reasons for having done so, is telling against the step having been taken. I accept the submission of the Minister that the Tribunal failed to consider whether or not it should exercise the discretion given to it by regulation 143. 27 I find that the decision of the Tribunal involved an error of law, being an error involving an incorrect interpretation of the applicable law (s 476(1)(e) of the Act).

Compelling reasons 28 The Minister further argued that the Tribunal erred in construing the expression "compelling reasons" in regulation 35AA of the Migration Regulation 1989. He contended that "compelling reasons" for the purpose of regulation 35AA must involve something in addition to "the basic pre-requisite criteria for the grant of the visa." I do not understand the respondent to have challenged the correctness of this contention. The issue detailed before me was whether it was open to the Tribunal to find "compelling reasons" within the meaning of regulation 35AA in this case. 29 The Tribunal dealt with regulation 35AA in the following passage: "There remains to be considered the issue of whether there are 'compelling circumstances' [sic] to grant the Applicant the entry permit sought because of his illegal status at the time of lodgement of the original application. This is a question of fact and must be considered having regard to the whole of the circumstances of the case. The word 'compelling' is not defined in the legislation and should therefore be accorded its ordinary meaning. The Macquarie Dictionary (second edition) inter alia defines the word as follows: to force or drive, esp. to a course of action … to secure or bring about by force … Having regard to the whole of the evidence particularly given the nature of the Applicant's relationship both as an Australian citizen as well as the fact that he has been living in Australia for some ten years the Tribunal finds that there are compelling circumstances to warrant the grant of the entry permit sought."

30 It is not appropriate to subject the above passage to overly fine analysis, especially in view of the assertion of the Tribunal that it had regard to the whole of the evidence. I am not satisfied that the Tribunal found "compelling reasons" in the "basic pre-requisite criteria for the grant of the visa." The relevant basic criteria were that the applicant was the spouse of an Australian citizen both at the time when his application was lodged and when the application was decided and that the relationship was a genuine and ongoing one. 31 The evidence before the Tribunal revealed that Mr Dunne, who had been in Australia for over ten years, had been living in a de facto relationship in Australia with Ms Luke for possibly as long as eight years. The evidence also disclosed that persons holding respectable positions in Mr Dunne's local community were willing to provide references for him and his spouse which described them as "honest hardworking people … well respected by their Peers", "a very nice couple [who] conducted themselves in an excellent manner" and "a very happy couple". Mr Dunne was described by a person involved in the construction industry who had known him "for a period of 10 years on a professional and personal level" as "an excellent character." 32 In my view it was open to the Tribunal, in the light of the above evidence, to find that there were reasons which went beyond the basic pre-requisite criteria which it was entitled to find were "compelling reasons" within the meaning of regulation 35AA for granting an entry permit to Mr Dunne.

CONCLUSION 33 However, in view of my conclusion that the decision of the Tribunal involved an incorrect interpretation of regulation 143 of the Migration Regulations 1989, the decision of the Tribunal will be set aside and the matter referred to the Tribunal for further consideration according to law. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Solicitor for the Applicant: Australian Government Solicitor

Solicitor for the Respondent: Anne O'Donoghue & Associates