Minister for Immigration & Multicultural & Indigenous Affairs v Schwart

10 Under s 5 and s 13 of the Act, a non-citizen who holds a visa that is in effect is a lawful non-citizen. Under s 5 and s 14, a non-citizen who is not a lawful non-citizen is an unlawful non-citizen. Thus, the criterion for determining whether a person is an unlawful non-citizen is whether that person holds a visa that is in effect. Under s 189(1), if an officer of the Department knows or reasonably suspects that a person in Australia is an unlawful non-citizen, the officer must detain the person. Under s 196(1), an unlawful non-citizen detained under s 189 must be kept in immigration detention until he or she is removed from Australia, deported or granted a visa. Section 198(1) provides that an officer must remove, as soon as reasonably practicable, an unlawful non-citizen who asks the Minister, in writing, to be so removed.

11 Section 501 of the Act deals with, inter alia, the cancellation of a visa on character grounds. Under s 501(2), the Minister may cancel a visa that has been granted to a person if:

• the Minister reasonably suspects that the person does not pass the character test; and
• the person does not satisfy the Minister that the person passes the character test.

12 Section 501(6)(a) relevantly provides that, for the purposes of s 501, a person does not pass the character test if the person has a substantial criminal record. Under s 501(7)(d), for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to two or more terms of imprisonment where the total of those terms is two years or more.

13 Section 501F applies, inter alia, if the Minister makes a decision under s 501 to cancel a visa that has been granted to a person. Section 501F(3) provides that if the person holds another visa and that other visa is neither a protection visa nor a visa specified in the Regulations, the Minister is taken to have decided to cancel that other visa. 14 Section 499 of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act, if the directions are about the performance of those functions or the exercise of those powers. Under s 499(2A), a person or body must comply with a direction so given. The Minister has given directions under s 499 that were current as at 5 February 2003 ('the 499 Direction'). 15 The primary judge observed that the Act and the Regulations create a complex scheme for the identification of particular visas with particular powers and entitlements. The effect of the Act and the Regulations is that the Minister must understand the nature and consequence of any decision that he is asked to make. That understanding is a jurisdictional fact. His Honour considered that it was a precondition to the exercise of the Minister's jurisdiction under s 501(2) of the Act that, as a matter of objective fact, there is in existence 'a visa'. His Honour concluded that, on the information before him, the Minister could not form a view as to the nature and consequence of the decision he was engaged in because the material he relied upon did not enable the Minister to do so. His Honour considered that the material was inconsistent in relation to a matter that was important to the Minister's decision making, namely whether the respondent had a permanent visa, with all that might imply, as against some other visa. 16 In the course of argument on the hearing of the appeal, it emerged that the respondent's case was based on a question of construction of the material evidencing the Minister's decision, although there was no suggestion that the primary judge adopted an incorrect principle. The real question on appeal turned on the true construction of the document purporting to evidence the decision of the Minister to cancel the respondent's visa. 17 The respondent contended, on the hearing of the appeal, that the Minister had not cancelled the respondent's visa but had purported to cancel a visa that did not exist. The Minister accepted that a decision purporting to cancel a visa that did not exist would be a nullity. However, the Minister contended that, on a fair reading of the document evidencing his decision, the decision was to cancel whatever visa the respondent then held. That contention requires a detailed examination of the documents in question. 18 The document that was handed to the respondent on 12 February 2003, with its annexures, being the document described as 'the decision record', consists, in all of 79 pages. Of that, seventeen pages comprise a memorandum addressed to the Minister ('the Memorandum'). The Memorandum was prepared by a case officer on 22 January 2003 and cleared by the acting director of the South Australian office of the Department on 24 January 2003. The Memorandum begins with a heading as follows: 'ISSUES FOR CONSIDERATION OF POSSIBLE CANCELLATION OF SUBCLASS 155 - FIVE YEAR RESIDENT RETURN VISA UNDER S 501(2) OF THE MIGRATION ACT 1958'. (Emphasis added). 19 At the end of the Memorandum is a page ('the Decision Page') headed 'MINISTER'S DECISION ON CANCELLATION UNDER S 501(2)'. The Decision Page relevantly contains the following: 'I have considered all relevant matters including (1) an assessment of the character test as defined by s 501(6) of the Migration Act 1958, (2) my direction under s 499 of that Act and [the respondent's] comments and have decided that: …

I reasonably suspect that [the respondent] does not pass the character test and [the respondent] has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa.' (Emphasis original). The page is signed by the Minister and is dated '5.2.03' in handwriting. 20 The Memorandum states that its purpose is to seek the Minister's decision on:

• whether the respondent passes the character test in s 501(6) of the Act; and
• if not, whether 'his visa' should be cancelled pursuant to s 501(2) of the Act. There is no other identification of the term 'his visa' beyond what appears in the heading set out above. 21 The Memorandum then contains material under the following headings and subheadings: PERSONAL DETAILS Personal Particulars of Visa Holder Immigration History of Visa Holder Current Location CONSIDERATION OF VISA CANCELLATION Grounds Reasonable Suspicion Evidence of Grounds Finding Against Character Test DISCRETION Primary Considerations Other Considerations OTHER MATTERS RAISED BY/ON BEHALF OF [THE RESPONDENT] EVIDENCE OR OTHER MATERIAL ON WHICH FACTS/BACKGROUND INFORMATION IS BASED.

22 Under the heading 'CONSIDERATION OF VISA CANCELLATION', the Memorandum relevantly states as follows:

'[7] It is open for you to find on the above facts, that there is a reasonable suspicion that [the respondent] does not pass the character test due to the fact that he has been sentenced to two (2) or more terms of imprisonment where the total of those terms is two (2) years or more. …

[12] Based on the above information it is open for you to find that [the respondent] has a substantial criminal record and, therefore, cannot pass the character test.' Under the heading, 'DISCRETION', the Memorandum relevantly states: '[13] If you are satisfied that [the respondent] cannot pass the character test you must consider the exercise of your discretion to decide whether [the respondent] should be permitted to remain in Australia. Section 501 of the Migration Act 1958 provides you with a discretion to cancel a visa. You have issued Directions under s 499 to guide delegates and the AAT in the exercise of that discretion. … [Y]ou are not bound by your s 499 Directions. In making a decision on this case it is open to you to be guided by the factors set out in the direction. However, in balancing the relevant factors in this case, you are free to place whatever weight you regard as appropriate on those factors.' The material under the subheadings 'Primary Considerations' and 'Other Considerations' consists of a detailed response to the 499 Direction.

23 The annexures to the Memorandum include a letter dated 24 May 2002 from the Department to the respondent. That letter draws attention to the fact that the respondent is the holder of 'a resident visa (subclass K1412)' and that that visa is 'your sole authority to travel to and enter Australia or remain in Australia'. The letter says that it has come to the attention of the Department that that visa may be liable to cancellation by the Minister under s 501 of the Act and says that the respondent is to be provided with an opportunity to comment. Written comments were invited by 28 June 2002.

24 On 25 June 2002, the respondent wrote to the Department relevantly saying: 'I am a non-citizen of Australia according to the legal definition - I have Permanent Residence. I live with my parents at the above address, and they are citizens of Australia. I declined to become a citizen of Australia because my grandfather (my mother's father) asked me always to be a German. …

However, I have lived in this country since I was 4. I speak German but English is my first language. I went to school here and have completed my first year of Apprenticeship in Adelaide. I have visited Germany but always return. …

I ask that I be given another chance since I have lived in this country since I was 4 and although not a citizen, I intend to live here, work here, and I am seriously considering becoming a citizen, despite my grandfather's wish. …

I would like to complete this letter of reply with a statement about myself. I am a 22 year old non-citizen who has been a resident of Australia for 18 years. Even though I was a criminal, I have made a vast improvement on my lifestyle and behaviour. … I realise that I have formal family in Germany but would like to say that I have not seen them for many years. Living in my home country would be very difficult because of my age and the fact that I am used to Australia. …'.

25 On 12 December 2002 and 15 January 2003, the Department sought clarification of the statement made in the respondent's letter 'I have visited Germany but always return'. The letters pointed out that, according to the Department's records, the respondent arrived with a visa for permanent residence on 2 December 1984 and that there is no record of a subsequent departure from and return to Australia. The respondent replied by saying that the words quoted should have read 'I wanted to visit Germany but always return'.

26 The material quoted from the correspondence just described is set out verbatim, together with other material, in the body of the Memorandum. It appears under the heading 'DISCRETION'. Apart from those references to the entry of the respondent into Australia, there is no mention of the basis upon which he entered and remains in Australia, except as appears under the subheading 'Immigration History of Visa Holder' under the main heading 'PERSONAL DETAILS'. Under the heading 'Immigration History of Visa Holder' the following appears:

Previous visa cancellations …: Nil'. Attached to the Memorandum is a computer printout of a record of the Department recording the arrival of the respondent on 2 December 1984 and other details including a visa number and the following entry: 'Visa Cnd: K1412.'

27 Following the hearing of the appeal, additional legislative material was provided to the Court. That material indicates that 'K1412' was an administrative code attached to a visa in the 'Family Migration' category. More specifically, it indicates that the respondent entered Australia as the 'Accompanying Member' of a 'Principal Applicant', in this case the respondent's mother who, in turn, was the holder of a 'K1411' visa, that is, a "Non-dependent Child' in the 'Family Migration' category. Residence Visa Category K1412 continues under the current regime as a transitional (permanent) visa pursuant to reg 2.01(b)(i) of the Regulations.

28 The heading of the Memorandum refers to a 'Subclass 155 - Five Year Resident Return Visa'. Regulation 2.01(a) provides for various classes of visa as set out in the items in Sch 1 of the Regulations. Item 1128 in Sch 1 provides for a class of visa described as 'Return (Residence) (Class BB)' and includes '155 (Five Year Resident Return)' as one of the possible subclasses. Clause 155 of Sch 2 of the Regulations sets out the various criteria for a Subclass 155 visa. Clause 155.511 provides that a Subclass 155 visa is a '[p]ermanent visa permitting the holder to travel to and enter Australia' for a specified period of time. To the extent that a Subclass 155 visa provides for a holder to remain permanently in Australia, it is similar to a transitional (permanent) visa. Significantly, the respondent never held a Subclass 155 visa which, by its terms, also entitles the holder to travel to and enter Australia. As indicated above, the transitional (permanent) visa held by the respondent does not entitle him to travel to and enter Australia.

29 The short question that arises on the hearing of the appeal is whether, by signing the Decision Page and dating it '5.2.03', the Minister cancelled the only visa held by the respondent, being the visa that continued in effect by the operation of reg 4(1) of the Transitional Regulations as a transitional (permanent) visa or whether, on its proper construction, it purported to do no more than cancel a 'Subclass 155 - 5 Year Resident Return Visa'. If, on its proper construction, the only effect of signing the Decision Page was to cancel a Subclass 155 - 5 Year Resident Return Visa, the decision had no effect, because the respondent was not the holder of such a visa.

30 The Minister contends that, on a fair reading of the Memorandum, it should be construed as a decision cancelling the only visa held by the respondent, being the visa referred to under the subheading 'Immigration History of Visa Holder'. That, of course, is not what it purports to do. A literal reading of it makes quite clear that the issues for consideration by the Minister involved the possible cancellation of 'Subclass 155 - 5 Year Resident Return Visa'. It states that those issues were for consideration in relation to the respondent. The Minister's decision was to exercise his discretion to cancel 'THE VISA'. He therefore purported to 'cancel the visa'. Read literally, the Memorandum can refer only to that visa the possible cancellation of which was to be the subject of consideration by the Minister.

31 It may well be that the case officer and acting director who prepared and cleared the Memorandum were intending to put before the Minister for his consideration the possible cancellation of the residence visa category K1412 held by the respondent. However, the Memorandum does not say that. The Decision Page does not purport to cancel a residence visa category K1412. It does not purport to cancel anything other than a 'Subclass 155 - 5 Year Resident Return Visa'. The respondent was never the holder of such a visa. The Memorandum purports to cancel a visa that did not exist. The Minister's purported decision was a nullity.

32 The result may appear to be a technical one. However, the material before the Court is an unfortunate example of sloppiness on the part of Commonwealth administrators. Where the entitlement of an individual to remain in Australia is in issue in the making of a decision, the Australian community is entitled to expect that the documentation in relation to the making of such a significant decision is prepared with care. The material in question has not been prepared with care.

33 It is not possible to be certain that the Minister understood, when signing the Decision Page, what he was doing. It may well be that he was well aware that the respondent had been resident in Australia for eighteen years and had, under the terms of a visa held by him, a right of indefinite residence. However, at no stage does the Memorandum refer to a 'transitional (permanent) visa' that the respondent is deemed to hold pursuant to reg 4(1) of the Transitional Regulations. If the Minister exercises the important discretionary power conferred by s 501, there should be no doubt that that is what he is doing.

34 The Minister did not, by the Memorandum, cancel the visa held by the respondent. Therefore, he is still a lawful non-citizen and was entitled to a declaration to that effect. The appeal should be dismissed with costs.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, Mansfield and Emmett.