Nguyen v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT LEE J: 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) for prerogative and injunctive relief in relation to a decision of the respondent ("the Minister") made on 12 July 2002 that "the visa" held by the applicant be cancelled by exercise of a power granted to the Minister by s 501(2) of the Migration Act 1958 (Cth) ("the Act"). 2 The relevant facts may be shortly stated as follows. 3 The applicant was born in Vietnam on 18 December 1969. He left Vietnam "as a refugee" at the age of 11 and apparently spent several years in a camp established for such persons in Malaysia. He was accepted by Australia for re-settlement in this country, presumably at the request of the United Nations High Commissioner for Refugees, and was granted a visa that permitted him to travel to Australia. He arrived in Australia on 15 December 1983. On 14 April 1993 the applicant married an Australian citizen. The two children born to that marriage are now 9 and 7, and, of course, are Australian citizens. 4 In about May 1999 the applicant was tried and convicted in the Supreme Court of Western Australia on three charges arising out of his participation in a joint illegal enterprise. The principal offence of which the applicant was convicted was manslaughter. On 25 May 1999 the applicant was sentenced to a total period of imprisonment of 12 years from 12 February 1998 and was made eligible for parole. 5 By a letter from the Minister's Department dated 30 June 2001 the applicant was invited to provide reasons why the Minister should not exercise a power under s 501 of the Act to cancel a "subclass 155 permanent residence visa" said to have been issued to the applicant on 3 March 1993. Enclosed with the letter was a copy of Direction No 17 made by the Minister under s 499 of the Act to provide guidance to delegates of the Minister making decisions to refuse or cancel a visa under s 501 of the Act. The applicant provided comments in response to that letter on 20 August 2001. 6 On 3 September 2001 the Minister's Department forwarded to the applicant a copy of Direction No 21 that replaced Direction No 17. The applicant replied to that letter on 13 September 2001 in the same terms as his earlier response, and repeated those comments in a letter dated 26 June 2002. Letters in support of the applicant were received by the Minister's Department from the applicant's father-in-law, the applicant's wife, and a prison chaplain who had attended the applicant during his imprisonment. 7 In early July 2002 officers of the Minister's Department prepared and submitted to the Minister a briefing paper described as "ISSUES FOR CONSIDERATION OF POSSIBLE CANCELLATION OF MR NGUYEN'S VISA UNDER S 501(2) OF THE MIGRATION ACT 1958" ("the Issues Paper"). The foregoing material forwarded to the Minister's Department by the applicant and others was attached to the Issues Paper. 8 Other attachments to the Issues Paper included: a record of arrival and departure movements of the applicant; the conviction record of the applicant; a report by the Western Australian Ministry of Justice on the rehabilitation of the applicant in the course of his imprisonment; and a transcript of the remarks made by the Judge of the Supreme Court in sentencing the applicant on 25 May 1999. In the papers before the Court four pages of that transcript were absent. Whether the papers forwarded to the Minister were deficient in a like respect is unknown. 9 One other comment can be made upon the Issues Paper. It appeared to misstate an element of the applicant's circumstances by informing the Minister that on 25 May 1999 the applicant had been sentenced by the Supreme Court to terms of imprisonment on three counts of conspiracy to commit indictable offences. The transcript attached to the Issues Paper showed that the applicant had been convicted of being a party to the offences of aggravated burglary, manslaughter, and assault occasioning bodily harm and had been sentenced on those offences and no others. 10 On 12 July 2002 the Minister cancelled "the visa". The applicant does not contest that s 501(2) of the Act applied to his circumstances and that the Minister had power to cancel the visa held by the applicant. 11 By letter dated 22 July 2002 the applicant was informed of the Minister's decision. The letter stated that the "copy of the decision record" enclosed "sets out the reasons for the decision". The "copy of the decision record" was a copy of the Issues Paper as endorsed by the Minister. 12 In relevant respects s 501G(1) of the Act provided as follows: '(1) If a decision is made under subsection 501(2)…to: … (b) cancel a visa that has been granted to a person; the Minister must give the person a written notice that: (c) sets out the decision; and (d) specifies the provision under which the decision was made and sets out the effect of that provision; and (e) sets out the reasons (other than non-disclosable information) for the decision.' 13 By reason of s 501G(1)(e) requiring the Minister to give a written notice that set out the reasons for a decision made under s 501(2), s 25D of the Acts Interpretation Act 1901 (Cth) also required the Minister to set out in that written instrument findings made by the Minister on material questions of fact and to refer to the evidence and other material on which those findings had been based. The Minister concedes that those requirements were not met and further concedes that the Issues Paper does not convey the reasons of the Minister for the decision he made. Perhaps paradoxically counsel for the applicant contended that the Issues Paper did express the reasons of the Minister. 14 At the outset it is to be noted that there appears to be some doubt about the kind of visa held by the applicant and what visa the Minister purported to cancel. 15 The applicant travelled to Australia on a visa described as "Cat. K4011/33". Under the Act, as it then stood, that visa expired when the applicant entered Australia. The "Issues Paper" informed the Minister that the applicant "arrived in Australia as a Refugee from Vietnam [on] 15 December 1983". It may be assumed that, under the Act as it then stood, upon arrival in Australia the applicant was granted an entry permit which did not restrict the time within which the applicant could remain in Australia, thereby being a permit that was defined by the Act as a "permanent entry permit". 16 As noted earlier the letter to the applicant dated 30 June 2001 which gave notice that cancellation of the applicant's visa was under consideration by the Minister, stated that the visa held by the applicant was "a subclass 155 permanent residence visa granted to you on 3 March 1993". 17 As at 3 March 1993 Part 155 of Schedule 2 of the Migration (1993) Regulations ("the 1993 Regulations") provided for the issue of a "Class 155 (Resident Return (B)) visa" ("Class 155 visa") and for the issue of a "Class 155 entry permit". Sub-item 155.12 of Part 155 stated that the purpose of the foregoing visa and entry permit was to "provide a return travel facility to certain Australian permanent residents". 18 Sub-items 155.2 and 155.4 of Part 155 provided that an Australian permanent resident could obtain in Australia before departure from Australia, a "Class 155 visa" to operate as a "travel-only visa" permitting return travel to Australia on any number of occasions within a period of no more than 5 years from the grant of the visa. 19 Pursuant to sub-item 155.5 of Part 155 a permanent resident who held a "Class 155 visa" which operated as a "travel-only visa" could be granted a "Class 155 entry permit" upon return to Australia. Sub-item 155.521 stipulated that a "Class 155 entry permit" had effect without limitation as to time. It was, therefore, a "permanent entry permit". 20 If it is assumed that on 3 March 1993 the applicant was granted a "Class 155 visa" to facilitate his return to Australia if he left Australia at any time within 5 years of the grant of the visa, the visa had not been utilised before 1 September 1994. 21 From 1 September 1994 the Act was amended by the Migration Reform Act 1992 (Cth). At that date travel visas and entry permits were replaced with a single system of visas for the control of travel and entry into Australia. (See: NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 499 at [386] to [393]). Section 34 of the Act then provided, in relevant respects: '34(1) There is a class of permanent visas to remain in, but not re‑enter Australia, to be known as absorbed persons visas. (2) A non-citizen in the Migration zone who: (a) on 2 April 1984 was in Australia; and (b) before that date had ceased to be an immigrant; and (c) on or after that date, has not left Australia, where left Australia has the meaning it had in this Act before 1 September 1994; and (d) immediately before 1 September 1994, was not a person to whom s 20 of this Act as in force then applied; is taken to have been granted an absorbed person visa on 1 September 1994.' 22 It was not submitted by the applicant that he was to be taken to have been granted an absorbed person visa as a person who had ceased to be an immigrant before 2 April 1984. (See: Johnson v Minister for Immigration & Multicultural & Indigenous Affairs (No. 3) [2004] FCA 137 per French J at [33]-[46]). 23 Regulation 4(1) of the Migration Reform (Transitional Provisions) Regulations 1994 ("the Transitional Regulations") read as follows: '4(1) Subject to regulation 5, if, immediately before 1 September 1994, a non-citizen was in Australia as the holder of a permanent entry permit, that entry permit continues in effect on and after 1 September 1994 as a transitional (permanent) visa that permits the holder to remain indefinitely in Australia.' 24 Regulation 5 did not apply to the applicant's circumstances and, therefore, it may be assumed that as at 1 September 1994 the entry permit granted to the applicant in December 1983 took effect thereafter as a "transitional (permanent) visa". 25 Further, pursuant to reg. 6 of the Transitional Regulations, a "Class 155 visa" applied for, and granted, in Australia before 1 September 1994, continued in effect thereafter as a "transitional (permanent) visa" permitting the holder thereof to return to and enter Australia until the date on which that visa would have ceased to be in force, and to remain in Australia indefinitely. (See: reg. 3(1), Transitional Regulations - "permanent visa"). 26 As noted earlier, the material attached to the Issues Paper included a "movement record" in respect of the applicant, being a print-out of computer-stored data held by the Minister's Department. That record indicated that the applicant left Australia on 4 February 1996 and returned on 19 March 1996. In that print-out the following appears: "Lawful Until: Trans Perm". 27 The reference in the letter from the Minister's Report dated 30 June 2001 to a "subclass 155 permanent residence visa granted to you on 3 March 1993" was incorrect. As at 3 March 1993 there was not a "subclass" under the 1993 Regulations nor a "permanent residence visa". 28 The Migration Regulations 1994 ("the 1994 Regulations") introduced subclasses of classes of visas on 1 September 1994. Section 31 of the Act provided that there were to be the classes of visas provided in the Act (ss 32-38) and other classes of visas as prescribed. Section 31(3) authorised the regulations to prescribe criteria for a visa or visas of a specified class. Regulations 2.01 and 2.02 of the 1994 Regulations prescribed the following: '2.01 Classes of visas (Act, s 31) For the purposes of section 31 of the Act, the prescribed classes of visas are: (a) such classes (other than those created by the Act) as are set out in the respective items in Schedule 1; and (b) the following classes: transitional (permanent); and transitional (temporary). 2.02 Subclasses (1) Schedule 2 is divided into Parts, each identified by the word "Subclass" followed by a 3-digit number (being the number of the subclass of visa to which the Part relates) and the title of the subclass. (2) For the purposes of this Part and Schedules 1 and 2, a Part of Schedule 2 is relevant to a particular class of visa if the Part of Schedule 2 is listed under the sub-item "Subclasses" in the item in Schedule 1 that refers to that class of visa.' 29 It can be seen that pursuant to 2.01(b) of the 1994 Regulations a "transitional (permanent) visa" was prescribed as a separate class of visa for the purposes of s 31 of the Act and was not a visa to which Schedule 1 or Schedule 2 of the 1994 Regulations applied. In passing it may be noted that Schedule 2 of the 1994 Regulations did provide a "Subclass 155 - Five Year Resident Return visa", to operate for a period of five years from the date of grant and to serve a similar purpose to that of the "Class 155 visa "referred to above. 30 From the foregoing it is to be concluded that on 1 September 1994, and on 12 July 2002, the visa held by the applicant was a "transitional (permanent) visa". 31 The circumstances described above are similar to those considered by a Full Court of this Court in Minister for Immigration & Multicultural & Indigenous Affairs v Schwart [2003] FCAFC 229. In Schwart the visa held was a "transitional (permanent) visa". The letter informing the visa holder that cancellation of the visa was under consideration stated, incorrectly, that the type of visa held was "a resident visa (subclass K 1412)". Under a sub‑heading "Immigration History of Visa Holder" the visa class was recorded as "Residence Visa Category K1412" with a right of indefinite residence. 32 In Schwart their Honours held as follows: '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.' 33 In the instant case the Issues Paper, under the subheading "Immigration History of Visa Holder" stated the following: "Visa Class: K4011/33 Visa Expiry Date: 6 June 1984 Stay Period of Visa: Indefinite"