Moore v Minister for Immigration & Citizenship

The Minister's decision 10 The Minister made a series of findings. She found that the applicant had a substantial criminal record, and that by reason of the sentence imposed for manslaughter, and s 501(6) and (7)(c) of the Act, he did not pass the character test. 11 The Minister considered various matters set out in Ministerial Direction No 21, being a Direction under s 499 of the Act ("the Direction"). The Direction is said to provide guidance to decision-makers in determining whether to refuse or cancel a visa under s 501. If a non-citizen does not pass the character test, decision-makers are required to have regard to three primary considerations and a number of other considerations. The primary considerations are: (a) the protection of the Australian community, and members of the community; (b) the expectations of the Australian community; and (c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children. 12 In relation to primary consideration (a), the factors relevant to an assessment of the level of risk to the community of the continued stay of a non-citizen include the seriousness and nature of the conduct, the likelihood that it may be repeated and whether visa cancellation may prevent or discourage similar conduct. The Direction states that a person's previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. 13 In relation to primary consideration (b), the Direction posits that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or there is a significant risk that they will breach this trust, or where the non-citizen has been convicted of offences, it may be appropriate to cancel the visa held by such a person. 14 In relation to primary consideration (c), the Direction makes it clear that the best interests of the child are to be taken into account only where the child is, or would be, less than 18 years of age at the time the decision is intended to come into effect. In general terms, the child's best interests will be served if he or she remains with his or her parents. However, countervailing considerations which may point to the child's best interests being served by separation from the non-citizen include, but are not limited to, any evidence that the child has been abused or neglected, or suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct. 15 Under the ambit of "other considerations" the Direction includes factors such as the extent of disruption to the non-citizen's family, business and other ties to the Australian community, marriage to or a relationship with an Australian citizen or permanent resident, and the degree of hardship which would be caused to immediate family members lawfully resident in Australia. The Direction provides that factors such as these should be taken into account but generally be given less individual weight than the primary considerations. 16 In relation to primary consideration (a), the protection of the Australian community, the Minister took into account the seriousness and nature of the applicant's conduct, the likelihood that such conduct might be repeated, and the question of general deterrence. She found that the conviction of manslaughter involved an offence which was very serious. She took into account the fact that in addition to his manslaughter conviction he had a number of other convictions for various offences. These included convictions involving acts of physical violence and the use or possession of weapons. The Minister regarded these matters as weighing in favour of cancelling the applicant's visa, and said that she gave them great weight. 17 The Minister went on to note that the applicant was first convicted in January 1982 "when he was 15 years old", and stated her belief that he could be considered to be a recidivist. She observed that the applicant had a number of positive urine results while in prison, indicating that he was using cannabis even while serving his sentence for manslaughter. She took into account information that the applicant had provided concerning various medical conditions and pain management which she regarded as going some way towards explaining his use of cannabis. However, the fact that he continued to use illicit drugs while in prison suggested that he was not completely able to control his substance abuse. The Minister said that she believed that there was a chance that the applicant may re-offend. That weighed in favour of cancelling his visa. She said that she gave moderate weight to that consideration. 18 The Minister said she gave no weight at all to whether cancelling the applicant's visa would act as a deterrent to other non-citizens who might engage in similar activities. 19 When it came to primary consideration (b), the expectations of the Australian community, the Minister said that non-citizens were expected to obey Australian laws. However, she also accepted that the Australian community would have some compassion for the applicant's situation. He had entered Australia in 1977, aged 11, and had lived here continuously since that time. Moreover, his immediate family, including his son, lived in Australia and he had had little or no contact with relatives overseas. The Minister concluded that in view of the seriousness of his offence and the extent and nature of his criminal history the community would expect his visa to be cancelled and that he be removed from Australia. That expectation weighed in favour of cancelling his visa, and the Minister said she gave moderate weight to that consideration. 20 Finally, the Minister had regard to primary consideration (c), the best interests of the applicant's 14 year old son. She noted that prior to his incarceration the applicant did not live with his son or have responsibility for his day to day care. However, the Family Court had ordered that he should have joint responsibility with the child's mother for his long term care, and that he should have regular contact with his son. 21 The Minister accepted that there was a strong bond between the applicant and his son. She also accepted that he was a committed father who was determined to do all he could to ensure that his son had a successful future. She accepted that his removal from Australia would have a detrimental effect on his son. She added, however, that she had also considered the possibility that the applicant may re-offend and the negative effect upon his son if this were to occur. She concluded that it would be in the best interests of the applicant's son that his father remain in Australia. She said that that consideration weighed against cancelling his visa. She said that she gave great weight to that consideration. 22 The Minister said that she also took into account, under the rubric of "other considerations" the hardship and distress that would be caused to the applicant and his immediate family if he were to be removed from Australia. She said that she gave that consideration moderate weight. 23 The Minister concluded her reasons for decision by stating as follows: "31. I considered all relevant matters including, an assessment against the character test as defined by s501(6) of the Migration Act 1958, Ministerial Direction 21 under s499 of that Act and all other evidence available to me, including evidence provided by Mr MOORE and on his behalf. 32. In reaching my decision I concluded that the seriousness of Mr MOORE's conviction for Manslaughter and his criminal history, and, to a lesser extent, the expectations of the Australian community outweighed all other considerations. 33. Having given full consideration to all of these matters, I decided to exercise my discretion to cancel Mr MOORE's visa under s501(2)."

Grounds of review 24 The applicant relied upon three grounds in support of his application for review. They are: "1. The Applicant was at the time of the decision of the Respondent not the holder of an absorbed person's visa; rather he was the holder only of a transitional (permanent) visa which was not cancelled by the decision of the Respondent nor taken to be cancelled by operation of sub-s. 501F(3). 2. The Respondent failed to exercise the jurisdiction conferred by s. 501(2) of the Act, or alternatively acted in excess of jurisdiction, by failing to take into account as a primary consideration, or at all, the best interests of … the child of the Applicant. 3. The Respondent failed to accord to the Applicant procedural fairness by refusing on 11 August 2006 to allow to the Applicant a further extension of the time in which to respond to a notice of intention to consider cancellation dated 29 June 2006 despite the illness and hospitalisation of the lawyer who was then assisting the Applicant with his proposed response."

Ground 1 25 Put simply, ground 1 contends that the applicant was never the holder of an absorbed person visa and, accordingly, the Minister's decision to cancel that visa was a nullity. 26 The only issue to be considered in relation to this ground is whether the applicant had "ceased to be an immigrant", within the meaning of that expression in s 34(2)(b) of the Act, before 2 April 1984. If, as the applicant submitted, he had not ceased to be an immigrant as at that date, he would not be taken to have been granted an absorbed person visa on 1 September 1994 (the date when the former system of entry permits came to an end, and was replaced by the new visa system). 27 The applicant submitted that he had not "ceased to be an immigrant" because he had, as at 2 April 1984, accumulated a substantial number of convictions for serious offences which were antithetical to his having been absorbed into the community. 28 In support of that contention the applicant relied primarily upon the judgment of French J in Johnson v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 494. In that case, Mr Johnson, a citizen of New Zealand came to Australia in 1981 at the age of six. He eventually acquired a lengthy criminal record. On 19 December 2002 the Minister purported to cancel his "special category visa" under s 501(2) of the Act on the basis that it was reasonably suspected that he did not pass the "character test". Mr Johnson submitted that he held an "absorbed person visa" pursuant to s 34, and not a "special category visa". He submitted that the decision of the Minister to cancel a non-existent visa was therefore affected by jurisdictional error. 29 French J accepted that contention. He held that the Minister's decision to purportedly cancel a visa not held by the applicant was a nullity. 30 His Honour discussed in some detail the authorities that bore upon the constitutional question which underpinned the criteria for an absorbed person visa, namely under what circumstances does a non-citizen who has entered Australia cease to be an immigrant for the purposes of the immigration power under s 51(xxvii) of the Constitution. He referred to Potter v Minahan (1908) 7 CLR 277; R v Macfarlane; Ex parte O'Flanagan (1923) 32 CLR 518; Ex parte Walsh; Re Yates (1925) 37 CLR 36; O'Keefe v Calwell (1949) 77 CLR 261; Koon Wing Lau v Calwell (1949) 80 CLR 533; and R v Forbes; Ex parte Kwok Kwan Lee (1971) 124 CLR 168. His Honour also referred to a number of decisions of the Federal Court to the effect that the statutory designation of a person as a "prohibited immigrant" or "unlawful non-citizen" could prevent his or her absorption into the Australian community. 31 French J then discussed more recent High Court authority. He referred to Re Patterson; Ex parte Taylor (2001) 207 CLR 391, a case which concerned the extent of the naturalization and aliens power under s 51(xix) of the Constitution. Mr Taylor, who faced deportation on account of criminal conviction, was a non-citizen whose absorption into the Australian community was not in issue. He had come to Australia in 1966 as a child, and been educated and made his home in this country. However, he had not taken out Australian citizenship. The Minister had purportedly cancelled his "absorbed person visa" which Gaudron J suggested reflected a concession that he had been completely absorbed into the community prior to April 1984. That, of course, was one of the requisites for an "absorbed person visa". 32 In Ex parte Taylor the High Court held, by a four to three majority, that Mr Taylor, as a British subject, was not an alien but a subject of the Queen of Australia. As such the power to cancel a visa under s 501(3) of the Act could not apply to him. 33 Ex parte Taylor was effectively overruled in Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 in relation to the time from which British subjects entering Australia would remain as aliens for constitutional purposes notwithstanding their absorption into the community and the ending of their status as immigrants. As in Ex parte Taylor, the question of absorption was not an issue in Shaw. 34 Importantly for present purposes, in Shaw Callinan J(at [183]) accepted that the commission of serious crimes against the community may be inconsistent with a person's absorption into the community. He referred to Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162 in that regard. He noted, however, that Mr Shaw had been living in Australia for more than twelve years before his first conviction which occurred when he was still a child. His Honour concluded that, in those circumstances, Mr Shaw had been absorbed into the Australian community by the time he came to the notice of the criminal courts. He added that he would not regard that first conviction, occurring as it did when Mr Shaw was so young, as putting him beyond the community of ordinary Australians. 35 It was in the light of these authorities that French J, in Johnson,identified (at [46]) the factors relevant to whether a person has been absorbed into the Australian community (and has therefore "ceased to be an immigrant") as including the following: "1. The time that has elapsed since the person's entry into Australia. 2. The existence and timing of the formation of an intention to settle permanently in Australia. 3. The number and duration of absences. 4. Family or other close personal ties in Australia. 5. The presence of family members in Australia or the commitment of family members to come to Australia the join the person. 6. Employment history. 7. Economic ties including property ownership. 8. Contribution to, and participation in, community activities. 9. Any criminal record." 36 French J noted that this list of factors was plainly not exhaustive. Rather, he said it illustrated "the multi-dimensional character" of the judgment involved. In his Honour's view, all the relevant factors, other than the time that had elapsed since the Johnson family's move to Australia, pointed strongly to the proposition that the family had become part of the Australian community as at 2 April 1984. Although Mr Johnson's criminal record was extensive, it only began in 1991. Accordingly, it had little or no bearing upon whether he had ceased to be an immigrant by April 1984. 37 It was submitted on behalf of Mr Moore, in the proceeding before me, that, in accordance with the authorities, his criminal record prior to 1984 was such that it precluded him from having been absorbed into the Australian community. As a result, he had not "ceased to be an immigrant" within the meaning of s 34(2)(b) of the Act, and therefore had not acquired an absorbed person visa. That in turn meant, using the reasoning of French J in Johnson, that the Minister had cancelled a non-existent visa. If that were so, s 501F(3) would have no application to this case because, as is implicit in the reasoning of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 230 ALR 370, that section can only be invoked in circumstances where a valid visa has been cancelled. 38 In order to fully appreciate the nature of the applicant's submission, it is necessary to set out in some detail Mr Moore's criminal history. It appears that at some stage, probably in 1981, he was convicted in the Children's Court in Melbourne on six counts of theft of a motor vehicle, three counts of unlicensed driving, five counts of burglary, and nine counts of theft. He was also convicted of one count of discharging a missile with intent to injure and one count of setting off fireworks without permission. The exact date of his convictions before the Children's Court is unclear, having been blanked out of the criminal history report set out in the application book. However, it is clear that Mr Moore appealed to the County Court from whatever orders were made in the Children's Court and was sentenced by the County Court on 22 January 1982 to 18 months' probation. 39 The criminal history report then records that on 13 January 1984 he was fined $100, in default five days youth training centre, on one charge of using indecent language in a public place. Finally, on 27 February 1984 he was dealt with at the Oakleigh Magistrates Court on charges of assault with a weapon, assault occasioning actual bodily harm, unlawful assault and wilful damage. He was fined a total of $600. 40 The applicant built up a lengthy criminal history after 1984. However, that is of only limited relevance when it comes to considering whether he had "ceased to be an immigrant" within the meaning of that expression in s 34(2)(b) as at 2 April 1984. 41 It is somewhat ironic that the applicant contends that his criminal record was so bad, as at 2 April 1984, that he had not been absorbed into the Australian community, while the Minister contends that, in reality, the offences which he had committed by that date were by no means so serious as to warrant that conclusion. The positions normally taken by the applicant and the Minister in cases involving cancellation of visas on character grounds are quite the reverse. 42 In any event, the Minister has proceeded throughout upon the basis that Mr Moore had an absorbed person visa as at 1 September 1994, having satisfied the requirements of s 34(2)(b) of the Act. That was the stance initially taken by the applicant as well. However, he no longer maintains that position. 43 In effect the only basis put forward in support of the applicant's contention that he had not ceased to be an immigrant as at 2 April 1984, and did not qualify for an absorbed person visa, was his criminal record as at that date. Whatever may be the merits, or otherwise, of treating a criminal record as an indication that a person has not been absorbed into the community, I am satisfied that Mr Moore's record, at the relevant time, was by no means so bad as to lead to that conclusion. He was, after all, only 15 years old when the County Court matters were dealt with, and still only 17 at the time of the proceedings in the Oakleigh Magistrates Court. None of the offences led to a custodial sentence. They do not strike me as having been so serious as to warrant the conclusion that the applicant had not ceased to be an immigrant by 2 April 1984. 44 I therefore reject the applicant's contention that he does not now, and never has, held an absorbed person visa. It follows that the Minister's decision to cancel that visa operates by law, pursuant to s 501F(3) of the Act, to cancel also his transitional (permanent) visa.

Ground 2 45 The applicant contends that the Minister constructively failed to exercise her jurisdiction by failing to take into account, as a primary consideration, or at all, the best interests of the applicant's child. 46 There is no substance to this contention. The Minister said that she gave primary consideration to the best interests of the child, which she regarded as a factor weighing against cancelling the applicant's visa. She said that she gave great weight to that consideration. There is nothing to suggest that she did not do so. 47 It was submitted on behalf of the applicant that the Minister must have paid only lip service to the best interests of the child, otherwise she would not have come to the decision that she did. In support of that submission counsel referred to Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133. There the Full Court held that the Administrative Appeals Tribunal had failed to treat the best interests of the children as a "primary consideration" in its determination. 48 In Wan, it was said to be of particular significance that the Tribunal had failed to identify anywhere in its written reasons for decision what the best interests of the children indicated that it should decide with respect to the application for a visa. It was also noted that the Tribunal had failed to describe the best interests of the children as a "primary consideration". 49 Neither of those factors is present in this case. The Minister plainly gave detailed attention to the best interests of the applicant's son, which she accepted favoured non-cancellation. She recognised that this was a primary consideration. She said she gave it "great weight". 50 Counsel for the applicant relied, in particular, upon the following extract from the Full Court's judgment in Wan (at [32]): "An identification by the Tribunal of what the best interests of Mr Wan's children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration." 51 In my view, there is nothing in this passage which supports the applicant's claim. The balancing process described above accords precisely with the approach that the Minister herself adopted. 52 In truth, Ground 2, and the applicant's submissions in support of that ground, seek merely to have this Court engage in merits review. That the Court cannot do.

Ground 3 53 The applicant's argument in support of Ground 3 relied almost entirely upon the decision of Allsop J in Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807. In that case his Honour set aside a decision by the Minister to cancel the applicant's visas, namely an absorbed person visa and a transitional (permanent) visa, because the applicant had been denied procedural fairness. 54 In Sales the applicant was given only 14 days to respond to a letter hand delivered to him on 8 August 2006 together with a copy of the Direction that set out, over some 11 pages, the matters that the Minister regarded as relevant to her determination. The letter also included a number of other documents, such as extracts from the Act, the applicant's criminal history, pre-release reports of various dates, parole reports and a copy of the sentencing judge's remarks. 55 Allsop J took into account the fact that the applicant in Sales was not a well-educated man. He also inferred that his family were not "people of wide or deep resources", or otherwise of significant education. His Honour said that it was clear that the task at hand for the applicant and those concerned with his welfare was likely to be a difficult one because of the seriousness of the crime for which he had served 18 years in prison, namely a particularly callous and brutal murder. To require him to put forward in a coherent fashion a response to the Department's letter in the space of 14 days was unrealistic and plainly inadequate. 56 However, the case of Mr Moore can, in no way, be equated with Sales. As previously indicated, Mr Moore was served with a notice of intention to consider cancellation of his absorbed person visa no later than about 5 July 2006 (seven days after the date on which the letter was sent). He was told that any response must be received by 24 July 2006. 57 Had matters rested there, the applicant would have had reasonable grounds for complaint. Nineteen days is scarcely an improvement over the 14 days regarded as inadequate in Sales. However, on 11 July 2006 Victoria Legal Aid requested an extension of time within which to respond. On 18 July 2006 the Department granted an extension until 21 August 2006. Thus the applicant was given more than six weeks to provide a response to the Minister's notice, a period I regard as reasonable in the circumstances. 58 Indeed, the applicant's position was actually stronger than this. On 12 October 2006 the Department wrote to Victoria Legal Aid inviting comment on matters it considered relevant to the notice of intention to consider cancellation. On 24 October 2006, Victoria Legal Aid responded to that letter. There was nothing to suggest that the applicant could not have added anything further to his earlier submission, in support of his claim to be permitted to retain his absorbed person visa. In fact the Department's letter of 12 October 2006 stated, after inviting the applicant to address the matters specifically drawn to his attention for comment, that he: " … may also wish to provide other information that he considers should be taken into account when a decision is made whether to cancel his visa." 59 In my view, the applicant was given ample opportunity to respond to the notice. He was not denied procedural fairness. Accordingly, Ground 3 is not made out.

Conclusion 60 For the reasons set out above, none of the three grounds in support of the application for review has been made out. It follows that the application must be dismissed, with costs. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate: Dated: 2 May 2007 Counsel for the Applicant: Mr G Hughan

Solicitor for the Applicant: Erskine Rodan & Associates