Phuc v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT LEE AND RD NICHOLSON JJ: 2 This is an appeal from a judgment of a judge of this Court which upheld an objection by the respondent ("the Minister") to the competency of an application filed by the appellant in which the appellant sought to "appeal" from a decision of the Minister cancelling a visa issued to the appellant under the Migration Act 1958 (Cth) ("the Act"). The appellant appeared in person before his Honour and on the hearing of the appeal was represented by counsel pro bono publico appointed pursuant to O 80 of the Federal Court Rules. 3 The appellant, then aged 20 and a citizen of Vietnam, entered Australia on 2 October 1990 as the holder of a visa which entitled him to reside in Australia permanently. The visa was issued upon the Minister being satisfied that the appellant had a well-founded fear of persecution if returned to Vietnam. 4 Between March 1992 and September 2001, whilst resident in Australia, the appellant was convicted of a number of offences. Many of the offences were of a minor nature, however, they included multiple incidents of burglary and an offence of robbery in company whilst armed. It appears the appellant was a user of heroin. The appellant was sentenced to seven years imprisonment for the burglary offences and four years and four months for the offence of armed robbery. 5 On 11 May 2002 the Minister determined that under s 501(2)(a) of the Act it was reasonable for him to suspect that the appellant did not "pass the character test" prescribed in s 501(6)(a) of the Act and that, under s 501(2)(b) of the Act, the appellant had not satisfied the Minister that he did pass that test. 6 Section 501(6)(a) of the Act provides that a person does not pass the character test if the person "has a substantial criminal record as defined by subsection (7)". Subsection 501(7) defined a person who "has a substantial criminal record" as, inter alia, a person who "has been sentenced to a term of imprisonment of 12 months or more". 7 The Minister decided to exercise the discretion vested in him by s 501(2) of the Act to cancel the visa issued to the appellant. 8 The appellant filed the application in this Court on 9 October 2002. The learned primary Judge took the application to have been made pursuant to the jurisdiction conferred on the court by s 39B of the Judiciary Act 1903 (Cth) seeking the issue of constitutional writs directed to the Minister and to be an application to which s 477 of the Act applied. 9 The Minister objected to the competency of the application on the ground that the appellant had failed to make the application within the time allowed by s 477 of the Act. Section 477 of the Act provides that an application to this Court under s 39B of the Judiciary Act in respect of a "privative clause decision", in relation to which the jurisdiction of the Court is not excluded by s 476 of the Act, must be made to the Court within 28 days. The jurisdiction of the Court is not "excluded" by s 476 of the Act in respect of a decision of the Minister made under s 501(2) of the Act. 10 Section 474 of the Act provides that a "privative clause decision" is protected from a judicial review, whether by constitutional writ issued by this Court under s 39B of the Judiciary Act or on any other account. In relevant respects a "privative clause" decision is defined by s 474(2) as: "a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not),…" 11 The apparent tension between the provisions of ss 474 and 477 of the Act reflects the understanding of Parliament as to the operation of "Hickman" principles which provide for privative clauses to be construed by a process of "reconciliation" (see: R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 per Dixon J at 614-617; Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 per Gleeson CJ at [19]-[22]). 12 In S157/2002 the High Court rejected the proposition that upon the introduction of s 474 to the Act, the provisions of the Act thereafter were to be construed contrary to ordinary principles of construction so as to remove from those provisions "imperative duties" or "inviolable limitations or restraints" that defined the limits of the jurisdiction conferred on decision-makers by those provisions. (See: Gleeson CJ at [34]-[35], Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [67]-[68], Callinan J at [162].) 13 In summary, it was held in S157/2002 that the centrality and protective purpose of s 75 of the Constitution, in assuring to all people affected that officers of the Commonwealth obey the law, placed significant barriers in the way of legislative attempts (by privative clauses or otherwise) to restrict judicial review of administrative action. Therefore, it followed that the construction of such a privative clause was governed by the express provision of the Constitution that constitutional writs may issue to ensure that the conduct of officers of the Commonwealth was subject to judicial review where jurisdiction to make an administrative decision conferred upon such officers by the Parliament had been neglected or exceeded. (See: Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [71]-[78] and [104].) 14 Thus s 474 of the Act was to be construed as excluding from the phrase "privative clause decision", as defined in s 474(2), a purported decision that involved "jurisdictional error", for example, a failure to discharge "imperative duties" or to observe "inviolable limitations or restraints" (see: Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [76]; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26, per Gummow and Callinan JJ at [32], Kirby J at [87]-[88], Hayne J at [95]). Therefore, s 474, properly construed, requires a decision made under the Act to which s 474(1) refers, to be a decision which involves neither a failure to exercise jurisdiction nor conduct in excess of the jurisdiction conferred by the Act (see: Minister Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117 per Gaudron, Gummow JJ at [44]). 15 In S157/2002 the plaintiff sought the issue of constitutional writs on the ground that he had been denied natural justice in the decision-making process carried out by the Refugee Review Tribunal in that the Tribunal took into account material adverse to the plaintiff's claims without giving the plaintiff notice of the material and the opportunity to address it. It was held that if the decision had been made in the manner asserted by the plaintiff it would not be a decision to which s 474 of the Act applied. That is, it would not be a decision under the Act being a decision which involved a failure to exercise the jurisdiction conferred by the Act or conduct by the Tribunal in excess of the jurisdiction conferred on it. 16 At the time of delivery of judgment in this matter by the learned primary Judge, 18 December 2002, the decision of the High Court in S157/2002 remained under consideration. It was delivered on 4 February 2003. 17 On the hearing of the appeal, counsel for the appellant submitted that the application for the issue of constitutional writs filed by the appellant sought to allege that the decision of the Minister involved a failure to exercise the jurisdiction conferred on him and that the decision made by the Minister was not a decision to which s 477 of the Act applied. The principal ground argued in support of that proposition was that the Minister failed to consider a fundamental issue that he was bound to consider in carrying out the decision-making function, namely, whether the appellant, to whom the visa had been issued as a person who had a well-founded fear of persecution if returned to Vietnam, remained a person who held such a fear. Counsel for the Minister submitted that if that question was one the Minister was bound to consider, in order that Australia not act in breach of its international obligations , the Minister had duly performed that duty. 18 Whether the failure alleged is characterised as a failure to accord natural justice to the appellant in the conduct of the decision-making process carried out by the Minister or as a failure to exercise the jurisdiction conferred on the Minister, thereby rendering ineffective the decision purportedly made, the claim, if made out, would involve a decision to which s 474(2) and, therefore s 477, would not apply. 19 The primary issue in the appeal, therefore, is whether the claim now made by the appellant is more than colourable so as to warrant the matter being returned to his Honour for hearing of the appellant's application. 20 Perusal of the papers before his Honour shows that the material put before the Minister to inform him of the matters relevant to the exercise of his decision-making power included an issues paper which stated, in clear terms, that a matter for consideration by the Minister was whether the appellant was no longer a person who had a well-founded fear of persecution if returned to Vietnam. The advice tendered to the Minister set out all information relevant to that determination. 21 Section 501G(1)(e) of the Act directed the Minister to give the appellant a written notice that set out the reasons for the Minister's decision. It may have been arguable that the Minister failed to comply with that requirement. (See: Minister for Immigration and Multicultural Affairs v W157/00A [2002] FCAFC 281.) The written notice delivered to the appellant stated that enclosed with the notice of cancellation of the appellant's visa was "a copy of the decision record that sets out the reasons for the decision". The "decision record" was the issues paper that had been prepared for the consideration of the Minister and which set out alternative decisions available to the Minister. The copy documents showed that the Minister recorded his decision by striking out alternatives other than the decision to cancel the visa. It was not submitted by counsel for the appellant that the task of the Court in hearing and determining the appeal would be assisted by adjourning the appeal and inviting the Minister to provide the reasons for the decision he made. (See: Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 7.) 22 On the material before the Court it should be concluded that the Minister did not fail to consider, nor to decide, the question whether the appellant now holds a well-founded fear of persecution if returned to Vietnam. It follows that no argument of substance as to neglect or excess of jurisdiction fell to be put or considered by his Honour in the process initiated by the appellant. 23 If it is assumed that s 477 applied to the proceeding, his Honour's conclusion that it was not filed within the time permitted by that section, was not seriously contested by counsel for the appellant and on the material placed before the Court the findings of fact and the decision by his Honour in that regard appear to have been both open and correct. 24 The appeal must be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons of their Honours Lee and RD Nicholson JJ.