Preston v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 420 | Case summary

4 Not long after his arrival in Australia, Mr Preston commenced a relationship with Sharen Jane Martin who is an Australian citizen. Their daughter, Chandra Dee Preston, was born on 11 October 1980. According to Mr Preston they lived in a de facto relationship and brought their daughter up together over the next twenty years. They were married in 1992, but the marriage ended in 1999. In the interim Mr Preston was convicted of the aggravated sexual assault of Ms Martin and sentenced to four years imprisonment. He was released on parole after sixteen months but the parole was revoked in circumstances which are not entirely clear from the affidavit material, but which appear to have followed a visit by himself and Ms Martin to a parole officer with the intention of obtaining access to a publicly funded marriage counsellor. 5 Mr Preston commenced living with Yvonne Michelle Sutton in September 2001. She is a United Kingdom citizen who has been a resident of Australia since 1966. 6 By a letter dated 28 November 2002, DIMIA sent to Mr Preston a notice that the Department was considering the cancellation of his visa under subs 501(2) of the Migration Act. The Department informed him that he was currently deemed to be the holder of a visa class TY444 Special Category Visa. He was invited to comment on his criminal history, a copy of which was attached to the letter. 7 Mr Preston responded by a letter dated 16 December 2002. He referred to his relationship with Ms Martin and the fact that both his parents are now living in Australia and that his mother is an Australian citizen. He also referred to his siblings and their respective families as providing love and support for him during difficult times. He said that his life style had improved since he had taken steps to rehabilitate himself. He said he was in the process of obtaining a licence to drive a motor vehicle. He referred to the charge of aggravated sexual assault in respect of Sharen Martin. He said he had dealt with their relationship problems and that they had been married in September 1992. He had in no way been involved with any group or gang who showed disregard for the law, or dealt in drugs or were violent. He was opting for sporting and Christian support groups. He made no reference to his then current relationship with Ms Sutton. 8 On 31 January 2003, DIMIA wrote to him requesting that he advise of any current relationship, but he did not reply to that letter. An officer of DIMIA then prepared a minute for the Minister to seek his decision on whether Mr Preston passed the character test in s 501(6) of the Migration Act and if not, whether his visa should be cancelled pursuant to s 501(2). The minute referred specifically to Mr Preston's conviction on 16 June 2000 in the Bunbury Court of Petty Sessions for driving under suspension and for which he was sentenced to a term of imprisonment of twelve months. Reference was made to the magistrate's sentencing remarks and it was put to the Minister that it was open to him to find that there was a reasonable suspicion that Mr Preston did not pass the character test due to the fact that he had been sentenced to a term of imprisonment of twelve months or more. Without, at that point, referring to Mr Preston's submission the minute then went on to refer to matters relevant to the Minister's discretion to cancel his visa. It referred to the Minister's directions issued under s 499 of the Act which guide delegates and the Administrative Appeals Tribunal in the exercise of that discretion. The Minister was reminded that when deciding a case personally he was not bound by his s 499 directions. 9 The minute went on to set out what were designated Primary Considerations, the first of which was the protection of the Australian community. It noted that Mr Preston's offence was not listed as a "very serious offence" under the ministerial direction. Nevertheless on the basis of his criminal history it was said to be open to the Minister to find that "his conduct against the community" was serious. 10 Reference was made to Mr Preston's letter. The minute also quoted a passage from a Pre Parole Assessment Report in respect of Mr Preston which was dated 7 September 2000 and which stated: "Having regard to Preston's conviction for sexual assault,…, his defacto, was also interviewed in person by the writer. Preston had informed the writer that… was fully aware of his history and she was able to confirm this, despite their having known each other for a relatively short time only (one year). … who is also a New Zealander, informed the writer that there is no violence in their relationship." A copy of Mr Preston's submission was annexed to the minute, as was a copy of the Pre Parole Assessment Report. 11 In the Pre Parole Assessment Report it was stated, inter alia: "Preston's victim in respect of his conviction for sexual assault was his then defacto wife. He was paroled in March 1991 and engaged in community based sex offender treatment as a condition of his release. His parole was suspended (and subsequently cancelled) a year later when he (and not his defacto) disclosed that he was continuing to force himself upon her. He was not re-released until May 1994, successfully completing this term of parole in April the following year. I would therefore question 'poor previous performance on community supervision' as a valid reason for this request." 12 In relation to Mr Preston's risk of recidivism, the minute noted that he had been administered with a "Warning of liability.." under s 55 of the Act on 8 April 1991 and had offended since that time. It referred to his submission about his rehabilitation and a Ministry of Justice report dated 2 August 1999 which said, inter alia: "PRESTON RESIDES IN THE MINIMUM SECTION (SIC) OF BUNBURY REGIONAL PRISON. STAFF IN ALL AREAS STATE HE IS A FRIENDLY PERSON WHO IS WELL MANNERED, HARD WORKING AND COURTEOUS, CREATING NO ADVERSE REPORTS." "PRESTON UPON INTERVIEW CAME ACROSS AS A FRIENDLY WELL ADJUSTED YOUNG MAN WHO STATES HIS ONLY PROBLEM IS HIS MOTOR VEHICLE RECORD. HE HAS A POSITIVE MATURE OUTLOOK FOR HIS FUTURE AND RELATES THAT HE HAS VERY GOOD SUPPORT FROM HIS GIRLFRIEND." In consideration of these factors it was said to be open to the Minister to find that Mr Preston was at "a medium risk of recidivism". In relation to general deterrence, the minute noted that the offence committed by Mr Preston was driving under suspension and that it was open to the Minister to find that cancellation of his visa would serve as a deterrent factor against others committing similar offences. 13 Under the heading "The Expectations of the Australian Community" it was said: "The offence committed by MR PRESTON is considered by the Government to be serious. The Australian community expects non-citizens to obey Australian laws while in Australia and therefore it is open for you to find that the character concerns or offence are such that the Australian community may expect that MR PRESTON should be removed from Australia." The minute also referred to the best interests of the children and noted that Mr Preston has no children under the age of 18 years. Other considerations mentioned included the effect of his removal on his family and other ties to the Australian community and the absence of any genuine marriage to or de facto or inter dependent relationship with an Australian citizen, permanent resident or eligible New Zealand citizen. 14 The Minister signed a decisional option at the end of the minute which read as follows: "[50] I have considered all relevant matters including (1) an assessment of the Character Test as defined by s501(6) of the Migration Act 1958, (2) my Direction under s499 of that Act and MR PRESTON'S comments, and have decided that: … (d) I reasonably suspect that Mr PRESTON does not pass the character test and Mr PRESTON 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." The decision to cancel the visa was dated 4 March 2003. The Application for Review 15 On 21 March 2003, Mr Preston filed an application for review and for prerogative and injunctive relief. That application, which has been amended by leave, relies upon the following grounds: "a) In purporting to apply the provisions of s501 and by making his decision to cancel the Applicant's TY 444 Residence Visa and in taking the Applicant into detention for the purposes and with the intention of removing the Applicant from Australia, the Respondent has acted unlawfully and beyond the powers of the Commonwealth. PARTICULARS i. The Applicant was born in New Zealand on 5 March 1961 and at all material times has been a British subject and a citizen of the New Zealand. (sic) ii. The Applicant first arrived in Australia on 7 August 1979 and has thereafter been a permanent resident of Australia. iii. The Applicant has been absorbed into the Australian Community and is no longer a migrant to Australia. iv. The Applicant is not and never has been "an alien" within the meaning of s51(xix) in the Constitution. v. The Commonwealth Parliament has no power to legislate to remove the Applicant from Australia or to hold him in detention pending such removal. vi. The Applicant is not subject to the power purported to be exercised by the Respondent under s501(2) of the Migration Act. vii. The Decisions made to cancel the Applicant's visa and thereafter to take the Applicant into detention were decisions which were not capable or reasonably capable of reference to the power given to the Respondent under ss189, 196 and 501 of the Migration Act as the Respondent's power did not extend to persons in the position of the Applicant. viii. The Respondent has no power to remove the Applicant from Australia or to hold the Applicant in detention. b) The Respondent's decision was made without jurisdiction and is thereby void: PARTICULARS i. The Respondent took into account an irrelevant consideration, namely that the Australian community would expect a person who had been convicted of the offence relied upon (namely driving without a licence, for which the Applicant had received a sentence of 12 months imprisonment), should be removed from Australia in circumstances where that person had been a permanent resident of Australia for more than 20 years and had all his family including daughter and granddaughter (sic), parents, and siblings living in Australia when there was no basis of fact or any material before the Respondent to support such consideration which was based on speculation only. ii. The Respondent failed to accord natural justice to the Applicant by taking into account the speculation that the Australian community would expect the Applicant to be removed from Australia for the offence of driving without a motor licence without first notifying the Applicant that he intended to rely on such speculation. iii. The Respondent failed to accord natural justice to the Applicant by having regard to adverse material contained in a Pre parole assessment report dated 7 September 2000 without giving the Applicant an opportunity to refute or to comment on the adverse material in such report. iv. The Respondent failed to have regard to a relevant consideration namely the continuing relationship between the Applicant and his daughter and grandson and whether that would be adversely affected by reason of the Applicant's removal from Australia." The relief sought is in the following terms: "1. An Order that the Respondent DO SHOW CAUSE: (a) WHY A WRIT OF PROHIBITION should not be issued out of this Court directed to the Respondent prohibiting him from further proceeding to act on the decision made by the Respondent on 4 March 2003 to cancel the Applicant's visa. (b) WHY A WRIT OF CERTIORARI should not be issued out of this Court directed to the Respondent removing into this Court to be quashed the said Decision made by the Respondent on the 4 March 2003 to cancel the Applicant's visa. 2. An Order that the Respondent be restrained from removing the Applicant from Australia. 3. An Order that the Respondent be restrained from detaining the Applicant for the purpose of removing him from Australia. 4. A Declaration that the Applicant is not liable for removal from Australia or detained for that purpose. 5. IN THE ALTERNATIVE an Order pursuant to s5 of the Administrative Decisions (Judicial Review) Act quashing or setting aside the Decision to cancel the Applicant's visa. 6. Costs. 7. Such other Orders as the Court may consider appropriate." The Motion for Interlocutory Relief 16 By a motion filed on 29 April 2003 and made returnable on 2 May 2003, Mr Preston sought an order in the following terms: "Subject to the Applicant undertaking to comply and thereafter complying with the terms of such undertaking as may be required by the Court; the Respondent whether by his servants, agents or howsoever otherwise, be restrained from continuing to detain the Applicant in immigration detention under the Migration Act pending the hearing of this Application or until further order." Interlocutory injunctive relief was also sought restraining the Minister from removing Mr Preston from Australia pending the hearing of the application or until further order. The Minister however has proffered an undertaking in the following terms: "The Respondent undertakes not to remove the Applicant from Australia pending the hearing and determination of the application or unless giving the Applicant three working days written notice of its intention to remove him." That undertaking is acceptable to the applicant. Whether the Applicant Should Be Released Pending the Hearing of his Application 17 It was not in dispute that the Court has the power, in a case such as the present, to make an interlocutory order pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) directing the release of the applicant from detention pending the hearing and determination of his application. The Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v VFAD of 2002 [2002] FCAFC 390 held that s 23 would authorise the grant of an interlocutory injunction to restrain what was claimed to be an unlawful detention - [99] and [101]. The application of the section to the detention of a person as an unlawful non-citizen pursuant to ss 189 and 196 of the Migration Act was held not to be precluded by the operation of s 196(3) of that Act. The Court said at [113]: "We are unable to accept the Minister's submission that s 196(3), upon its proper construction, impliedly denies the s 23 power to this Court. In our opinion, Parliament has not made "unmistakably clear" its intention to abrogate the power of this Court to protect a "fundamental freedom" by ordering the release, in appropriate circumstances, on an interlocutory basis, of persons in detention who have seriously arguable claims to be lawful non-citizens and thus to have their liberty." 18 The Full Court in that case made it clear that a necessary criterion for the grant of such interlocutory relief is that there be a serious question to be tried - [159]. It may be taken therefore that the Court considered the long accepted test for the grant of interlocutory relief to be applicable in such a case, namely that there is a serious question to be tried and that the balance of convenience favours the grant of the relief. It is also well established that these criteria are interdependent. Where the case for final relief appears strong, the balance of convenience necessary to support the interlocutory order may be correspondingly less in favour of the applicant than where the case is not so strong. Similarly, where the balance of convenience weighs strongly in favour of the applicant the strength of the seriously arguable case necessary to warrant the grant of relief may be less. 19 The Minister contended that where the substantive application challenges the validity of legislation there should be compelling grounds before such a challenge could support the grant of interlocutory relief. The Minister relied upon observations by Mason ACJ in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 155-156: "In the absence of compelling grounds, it is the duty of the Court to respect, indeed, to defer to, the enactment of the legislature until that enactment is adjudged ultra vires." 20 In NAMU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 401, the Full Court declined to order the appellant's release pending the determination of the appeal. The appeal there raised the question whether s 196 of the Migration Act is invalid "… to the extent that it purports to derogate from the jurisdiction which is vested in the Federal Court of Australia by s 39B of the Judiciary Act 1903 by directing the Federal Court of Australia as to the manner in which it is to exercise that jurisdiction" [1]. In rejecting the application for interlocutory release the Court referred to principles which it described as "clear and well-established" namely "where interlocutory relief is sought pending a challenge to the constitutional validity of a statute, the court approaches the question on the basis that the provision that is being challenged is valid unless it is shown to be invalid" - [7]. 21 More recently however, on 6 March 2003, the Full Court, at the close of argument on appeal from the decision in Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1422, where a constitutional issue and administrative law grounds for review were raised by the appellant, granted an injunction for his release while reserving its decision on the substantive issue. The constitutional ground in that case, like that in the present case, was whether Mr Long, a British subject who had come to Australia in 1981 and had been absorbed into the community, was outside the reach of both the immigration and the aliens power. 22 In Ex parte Cowgill, Re Minister for Immigration & Multicultural & Indigenous Affairs P100/2002, Gummow J refused to make an order for interlocutory release of an applicant, for constitutional writs and for habeas corpus. There the applicant, a New Zealand citizen whose visa had been cancelled under s 501 of the Migration Act and who was held in detention under s 196 of the Act, contended that the provisions did not apply to him as he was neither immigrant nor alien. A case had been stated for hearing by the Full Court of the High Court on 17 June on that and another matter in which similar issues arose. Gummow J referred to a passage from the judgment of Linden J in Morgentaler v Ackroyd (1983) 42 OR (2d) 659where it was said that the balance of convenience normally dictates that those who challenge the constitutional validity of laws must obey those laws pending the court's decision. His Honour also referred to the observations of Mason ACJ in Castlemaine Tooheys, and said: "The decisions in this Court to which I have already referred demonstrate that there are a variety of situations in which the Court, on a proper balance of convenience, will restrain enforcement of a statute in aid of a plaintiff's constitutional right. In arriving at a balance of convenience the Court will take into account the seriousness of the conduct enjoined by the statute and the damage to the public interest that may be caused by restraining its enforcement. And in some cases the balance of convenience may be affected by the Court's perception or evaluation of the strength of the plaintiff's case for invalidity. But, subject to these qualifications there can be no reason to doubt the correctness of the general thrust of the comments in the passage which I have quoted. In the absence of compelling grounds, it is the duty of the Court to respect, indeed, to defer to, the enactment of the legislature until that enactment is adjudged ultra vires." His Honour, in that case, been pressed with the argument that the applicant was contending, not that the relevant provisions were invalid, but that they could not validly apply to him as they were constitutionally limited in their application to immigrants and aliens. 23 The passage cited from the judgment of Mason ACJ in Castlemaine Tooheys did not establish a distinct test for the grant of interlocutory injunctions in cases involving the validity of a statute. His Honour said, at 153: "The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction." As appears clear from what was said by Mason ACJ in Castlemaine Tooheys and by Linden in Morgentaler v Ackroyd the compelling grounds requirement is simply a way of expressing the accepted test for the grant of interlocutory relief in the special case of asserted statutory invalidity. It was also apparent from the remarks of Gummow J in Ex parte Cowgill that his Honour saw the requirement for compelling grounds in the same way. The requirement for compelling grounds in such cases is an expression of the requirement that the balance of convenience favour the grant of the relief sought. 24 The amended application asserts that the power conferred upon the Minister by s 501(2), to cancel a visa of a non-citizen in Australia, does not apply to him as he is beyond the constitutional reach of that power. Counsel for the applicant concedes that if the decision in Long is correct, then his client could not succeed on that ground. There may be a question how the relevant constitutional limit applies in relation to the cancellation of a visa (if at all) as distinct from its application to the power to detain or remove a non- immigrant, non-alien, non-citizen whose visa has been cancelled. The operation of the limitation on the cancellation power itself is not without difficulty. So much having been said, I accept that there is a serious question to be tried on the issue of constitutional limits upon the powers to cancel the applicant's visa and to detain and remove him. 25 In deciding whether interlocutory relief should be granted the constitutional issue should not be considered in isolation from the other grounds of review raised in the amended application. These are intended to identify jurisdictional errors which the Court would not be precluded from entertaining, by s 474 of the Act. It is not appropriate at this stage of the proceedings that I express any concluded view upon the other grounds. Suffice it to say that I am prepared to treat them as arguable grounds, albeit they do not disclose a strong case for review. 26 The applicant submits that he is unlawfully detained and the balance of convenience favours his release. Having regard to the views I have formed about the grounds of his application, the contention that he is unlawfully detained rests primarily on the seriously arguable case that he is neither immigrant nor alien. 27 In assessing the balance of convenience, the primary consideration lying against the applicant is, that as a matter of public policy, the law should be treated as valid according to its terms until adjudged otherwise, ie as invalid or constitutionally limited in its application. That is a proposition of general application to any law whose validity or constitutional limits is in issue. Where the constitutional limits of the law determine whether or not a person is subject to administrative detention, there arises a countervailing consideration affecting the balance of convenience. That is that every person is entitled, unless lawfully detained, to be at liberty. A seriously arguable case that a person is being detained in the purported exercise of a power beyond constitutional limits raises a risk that the person is being unlawfully detained. This is a significant factor in determining whether in such a case there is a compelling ground for the grant of interlocutory relief. It is important to bear in mind that the compelling ground criterion is of general application as an expression of the "balance of convenience" criterion for the grant of interlocutory relief in relation to the enforcement of a wide range of laws. Like the balance of convenience test which it expresses, it is ambulatory in character. The risk that a person may wrongfully be deprived of his or her liberty is not to be put on the same footing as the risk that a person may be required to pay an unlawful tax or fee. An unlawful tax or fee may be recoverable. Liberty lost is never recoverable even if partially compensable by damages. 28 There are considerations personal to the applicant which also bear upon the question of balance of convenience. He currently maintains a good relationship with his former wife Sharen, and with his daughter Chandra, who has recently given birth to her own child and who resides with the applicant's parents. She has suffered from drug addiction and is currently undergoing a drug rehabilitation course. The parents are the primary carers for the applicant's grandchild but if released he could provide assistance to them in this regard. 29 From September 2001, the applicant has developed a new and promising relationship with Ms Yvonne Sutton. He has been living with her. This cohabitation was interrupted by a sentence of six months imprisonment imposed on the applicant on 12 April 2002 for again driving under suspension. He spent two and a half months of that term in prison and one and a half months on home detention. Ms Sutton is aware of the applicant's past history. She has suffered from drug addiction and, according to the applicant, he has assisted her in overcoming that addiction and helping her to resolve severe anxiety. 30 In an affidavit sworn by Ms Sutton in these proceedings, she says she is the applicant's fiancee and that they have lived together since September 2001. She is a United Kingdom citizen who came to Australia when she was 3 years old in 1966 and has been a resident of Australia since that time. She met the applicant when he was sharing a house with her daughter and her boyfriend and another friend in Bunbury in 2001. After their relationship commenced they began living together in a caravan park near Bunbury. She has been the victim of home invasion and physical assault in the past. She says that since living with the applicant she has found a new sense of security. She has been able to sleep properly and generally live a normal life. His detention has caused the return of anxieties that she used to suffer as a result of the attacks upon her. She gets on well with the applicant's family, his ex-wife Sharen, and his daughter, Chandra. She says he has a good relationship with her two daughters who are aged 20 and 22. She and the applicant have sought the assistance of Prison Fellowship, which is a church-based voluntary group, established to assist ex-prisoners. She was addicted to heroin for many years and had a Naltraxone implant inserted about twelve months ago by which means she was able to cure her habit. The applicant and her children have greatly helped her in coping with her previous addiction. 31 The applicant says he is prepared to report twice weekly to the Department and that his parents are prepared to post a bond of $3,000 to ensure that he complies with the conditions of his release. If released, he would continue to live with Ms Sutton in their flat in Wembley. 32 I have sympathy for the applicant who may well be endeavouring to construct a new life for himself as a law-abiding and useful member of society. That sympathy however is tempered by his repeated breaches of the law, including driving yet again while under suspension last year. This impacts upon the question whether there is a risk that, if released pursuant to an interlocutory order, the applicant would fail to observe conditions necessarily attaching to that release pending the hearing and determination of his application. He will be under stress during that time associated with the uncertainty that surrounds his future. He has shown a tendency to impulsive behaviour in breach of the law when under pressure as evidenced by the circumstances of his conviction for driving under suspension in 2000. On that occasion, according to what his counsel said in mitigation in the Court of Petty Sessions at Bunbury, he had gone home from work to the caravan park where he lived and received a message that his de facto wife wanted him to pick her up from the train station. He immediately tried to ring her back because she knew he couldn't drive and he didn't know if he could arrange for friends to pick her up in her car. Although he tried to ring friends to see if they could drive the car to the train station he was unable to contact anyone and because of her depressed state at the time, following her mother's death, he didn't want her to be left alone at the station. He didn't have any money for a taxi. According to his counsel he drove her car to the train station to pick her up. He was evidently stopped for a vehicle check on the way home and the charge for which he was sentenced subsequently laid. 33 The reliability of any prognosis that this Court may formulate as to the risk of flight or non-compliance with conditions upon interlocutory release is limited. I am inclined to think that the risk of flight is low given that the applicant's parents are prepared to provide a bond and given his evidently serious commitment to Ms Sutton. On the other hand, there is a risk of non-compliance with the conditions of his release particularly having regard to his committing the offence of driving under suspension as recently as April 2002. 34 In this case, the hearing and determination of the application can be brought on relatively soon. It is fixed for hearing on 27 June 2003. Its ultimate fate may depend upon cases to be argued in the High Court in June 2003 which may not be decided until late in the year. 35 In the end I have regard to the following matters: 1. The apparent application of the relevant law to the applicant. 2. My decision in Long v Minister for Immigration & Multicultural & Indigenous Affairs which supports the proposition that the cancellation of the applicant's visa and his detention is within the constitutional limits of the law albeit it is under appeal to the Full Court which has released the appellant in that case pending the Court's decision. 3. The existence of a serious arguable case to the contrary of my decision in Long and the associated risk that the applicant is being detained unlawfully. 4. The weakness of the non-constitutional administrative law grounds upon which review is sought albeit they are arguable. 5. The short time before the hearing of the substantive application. 6. The reservations I have as to the applicant's capacity to comply with the conditions that would necessarily have to be imposed upon any interlocutory release. 7. The support available from the applicant's family and his commitment to and support for Ms Sutton. 36 In the circumstances, I am of the view that the order for interlocutory relief sought should be made. I will make an order subject to reporting, residence and movement conditions and the lodgement of a monetary bond. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French..

Preston v Minister for Immigration & Multicultural & Indigenous Affairs

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