Minister for Immigration & Multicultural Affairs v Perth City Mission

REASONS FOR JUDGMENT 1 This is an "appeal" from a decision of the Administrative Appeals Tribunal ("the Tribunal") in which the Tribunal determined that a decision of a delegate of the applicant ("the Minister") not to grant visas to the second respondents ("Mr and Mrs Powell") under the Migration Act 1958 (Cth) ("the Act") be set aside and the matter remitted to the Minister with a "direction" that "Mr and Mrs Powell not be refused visas on the basis of their bad characters". 2 The first respondent is a "community organisation" which sponsored applications by Mr and Mrs Powell for "Subclass 103 - Parent Visas", a requirement for the grant of such visas set out in cl 103.212(3)(d) of Schedule 2 of the Migration Regulations 1994 ("the Regulations"). 3 The delegate of the Minister refused the applications for the visa in November 1966. 4 An application to review the decision of the delegate was made to the Tribunal and the Tribunal affirmed the delegate's decision in June 1998. 5 In November 1998, on an "appeal" to this Court from the decision of the Tribunal, orders were made that the decision of the Tribunal be set aside and the matter remitted to the Tribunal for determination according to law. 6 The Tribunal redetermined the matter in March 1999. The Tribunal found that Mr and Mrs Powell were not persons of "good character" but set aside the decision of the delegate and remitted the matter to the Minister with a "direction" that "Mr and Mrs Powell not be refused visas on the basis of their bad characters". The Minister now "appeals" from that decision of the Tribunal. 7 The relevant facts found by the Tribunal may be stated in short form as follows. Mr and Mrs Powell are citizens of Great Britain. Mr Powell is 46 and Mrs Powell is 39. Mr Powell last entered Australia in March 1992 and Mrs Powell in July 1992. They have resided in Australia since those dates. They were married in May 1993. A child of the marriage was born in October 1994. At that time Mr Powell was the holder of a Transitional (Permanent) Visa. Under the provisions of the Citizenship Act 1948 (Cth), the child of the marriage was an Australian citizen from birth. It is accepted that the child is "a settled Australian citizen" for the purpose of cl 103.211(a) of Schedule 2 of the Regulations and therefore that a principal criterion for the grant of a Subclass 103 - Parent Visa has been satisfied. 8 Mr and Mrs Powell met in the United Kingdom in 1985 or 1986. At that time they were employees of the same employer. Each was married but their respective marriages were destined for dissolution. In February 1987 Mrs Powell's marriage was dissolved on her petition which alleged violent conduct by her partner in the course of the marriage. Mr Powell's marriage was dissolved in September 1988. 9 By February 1989 Mr and Mrs Powell had established a de facto marriage relationship. They visited Australia in the months of February and March 1989. Mrs Powell returned to Australia in November 1989 and Mr Powell arrived one week later. In the course of that visit Mr Powell reached an understanding with a person who held "permanent resident status" - a person Mr and Mrs Powell had met on the earlier visit - that Mr Powell and that person would enter a form of marriage to enable Mr Powell to apply to migrate to Australia to rejoin his "spouse". 10 Mrs Powell was aware of, and acquiesced in, the arrangement. Mrs Powell returned to the United Kingdom in January 1990. Mr Powell was "married" in Australia in February 1990. In April 1990 he returned to the United Kingdom, resumed cohabitation with Mrs Powell, and made application to migrate to Australia, the application being supported by the "spouse". In due course the application was approved and Mr Powell re-entered Australia in August 1991 on a Transitional (Permanent) Visa. In October 1991 he returned to the United Kingdom. In company with Mrs Powell he came back to Australia in March 1992. In May 1992 Mrs Powell returned to the United Kingdom. In June 1992 Mr Powell and his "spouse" made joint application for dissolution of their "marriage". The "marriage" was dissolved in July 1992 and in the same month Mrs Powell returned to Australia to resume cohabitation with Mr Powell. In December 1992 Mrs Powell applied for a visa as the de facto spouse of Mr Powell. That application caused officers of the Minister's department to commence enquiries about the activities of Mr and Mrs Powell. In June 1995 the department gave notice of the intention to cancel the Transitional (Permanent) Visa held by Mr Powell. In July 1995 Mr and Mrs Powell applied for the Subclass 103 - Parent Visas. 11 In June 1996 Mr Powell's Transitional (Permanent) Visa was cancelled and, as noted earlier, in November 1996 the applications for Subclass 103 - Parent Visas were refused. The applications were refused pursuant to the terms of s 501 of the Act. 12 At that time s 501 read 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