Pull v Minister for Immigration and Multicultural and Indigenous Affairs

Grounds of appeal 12 The applicant submits that there are four errors of law in the Tribunal's decision and that each of those errors was a jurisdictional error. First, he submits that he held an absorbed person visa, either alone or as well as a transitional permanent visa, and that the Tribunal member erred in law in failing to review the cancellation of the absorbed person visa. Secondly, he submits that the power in s 501(2) to cancel a visa cannot be used in circumstances where the power to deport in s 200 is not available because of a limitation on that section, namely that the offences leading to a term of imprisonment of 12 months or more had not been committed within the 10 year period: s 201(b)(i). Thirdly, the applicant submits that the power in s 501(2) cannot be used for the purpose of punishment and that that is what has occurred in this case. In the alternative, he submits that if the section can be used in that way, it is unconstitutional. Notices were given under s 78B of the Judiciary Act 1903 (Cth) but no Attorney-General sought to intervene. The notice describes the constitutional issue as follows: 'The Constitutional issue which arises out of this case flows from one of the alleged grounds of invalidity of the decision of the second Respondent in that the use of the aliens power, in the circumstances of the applicant, is not a valid exercise of that power but is an exercise by the executive arm of government of punishment.' 13 Fourthly, the applicant submits that the Tribunal member erred in not taking a relevant consideration into account, namely, the expectations of the Australian community. 14 At the time this appeal was argued before me, the High Court had not handed down its decision in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom.That decision has now been handed down: (2006) 81 ALJR 1 ('Nystrom'). The decision is a significant one in that it resolves a number of the issues in this case.

The alleged failure to consider the cancellation of the absorbed person visa 15 In Nystrom, the Minister appealed from a decision of the Full Court of this Court. The Minister had cancelled the respondent's transitional permanent visa and the respondent challenged that decision. He submitted that he held an absorbed person visa instead of, or in addition to, the transitional permanent visa. He submitted that the Minister's decision was invalid for jurisdictional error because the Minister had made a decision in relation to a visa he did not hold. He also argued that if he held a transitional permanent visa the Minister in cancelling that visa had erred because he had not taken into account the fact that by reason of s 501F(3) of the Act his decision would also lead to the cancellation of his absorbed person visa. The respondent also submitted that the power in s 501(2) was restricted or curtailed by the operation of s 200 and s 201 of the Act. It will be apparent from this brief summary that a number of the arguments in Nystrom were the same as the arguments put in this case. 16 By the time Nystrom had reached the High Court it was common ground that on 1 September 1994 the respondent held an absorbed person visa. As I have said, in the case before me the Tribunal member seems to have assumed that the applicant held an absorbed person visa, although he did not finally decide the point. On appeal to this Court, the Minister argued the matter on the basis that the applicant held an absorbed person visa as at 1 September 1994 without conceding that that was necessarily the case. 17 A non-citizen who falls within the terms of s 34(2) of the Act is taken to have been granted an absorbed person visa on 1 September 1994. Section 34(1) and (2) of the Act are in the following terms: '(1) There is a class of permanent visas to remain in, but not re‑enter, Australia, to be known as absorbed person visas.

(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 section 20 of this Act as in force then applied;

is taken to have been granted an absorbed person visa on 1 September 1994.' 18 Whether a person has been absorbed into the Australian community and thereby ceased to be an immigrant requires a consideration of a number of the factual matters of which French J provided a summary in Johnson v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 494 at 510 [46]. 19 It seems to me that it is likely the applicant fell within the terms of s 34 of the Act and I am prepared to assume that he held an absorbed person visa on 1 September 1994. 20 The applicant submits that he could only hold one visa at a time and therefore he did not also hold a transitional permanent visa on 1 September 1994. He referred to s 82(2) of the Act which is in the following terms: '(2) A substantive visa held by a non‑citizen ceases to be in effect if another substantive visa (other than a special purpose visa) for the non‑citizen comes into effect.' 21 The applicant also submits that an absorbed person visa is a visa granted by statute and it should prevail over a transitional permanent visa, which, it was submitted, is a visa granted by regulation. 22 Both these arguments were put in Nystrom and both were rejected by the High Court. 23 Heydon and Crennan JJ (with whom Gleeson CJ agreed) reviewed the legislative history in relation to an absorbed person visa and a transitional permanent visa. Their Honours then said (at [116]-[119]): 'Section 34(2) sets out four prerequisites for an Absorbed Person Visa without any reference to being limited to persons "not holding an entry permit". In the final result, s 34(2) and reg 4(1) overlap and confer identical rights. Section 34 covers all persons who satisfy the four prerequisites in s 34(2), irrespective of whether those persons hold an entry permit, and reg 4(1) covers all persons holding permanent entry permits irrespective of whether they could satisfy s 34(2).

There is nothing in the terms of s 34(2) or reg 4(1), or in the legislative history of either, which supports Mr Nystrom's contentions that s 34(2) covers the field or should prevail over reg 4(1), or that reg 4(1) is of doubtful validity or has no application to Mr Nystrom. The legislative history also shows that s 34 visas were to be subject to the power to cancel in s 501(2), contrary to Mr Nystrom's submission that s 501(2) should be read down by reference to ss 200 and 201, which will be dealt with more fully later.

Section 82(2) has no application to the situation here where two visas were granted simultaneously. Sections 15, 82(2), 82(3) and 501F(3) of the Act all recognise the potential for a person to hold multiple visas under the Act. As s 34 covers absorbed persons, whether or not they had entry permits, provided they satisfied the criteria in s 34(2), and reg 4(1) covers persons who held an entry permit of the kind which Mr Nystrom held, he qualified for and acquired simultaneously each of the deemed visas under s 34(2) and reg 4(1).

Accordingly, in deciding to cancel Mr Nystrom's Transitional (Permanent) Visa, the Minister was not relying on a visa which Mr Nystrom did not have, as contended by Mr Nystrom.' 24 Gummow and Hayne JJ reached similar conclusions (at [29]-[36]). 25 On the authority of Nystrom the applicant's submission that he did not hold both a transitional permanent visa and an absorbed person visa must be rejected. 26 The second submission in Nystrom was that assuming the respondent held a transitional permanent visa the Minister had erred in failing to take into account the fact that by reason of s 501F(3) of the Act a decision to cancel that visa also led to the cancellation of the absorbed person visa. 27 The High Court rejected this submission. Heydon and Crennan JJ (with whom Gleeson CJ agreed) said (at [129]): 'In these circumstances where Mr Nystrom holds two visas, each of which confers the same substantive rights, in cancelling one the Minister is not bound to take into account the "nature" of the other. This is because there was no consideration relevant to Mr Nystrom's Absorbed Person Visa which was not relevant to and considered when the Minister cancelled his Transitional (Permanent) Visa. Thus, there has been no failure to take account of relevant considerations. Section 501F(3) confirms that conclusion.'

28 Gummow and Hayne JJ said (at [40]): 'It is not sufficient in this regard to treat the Principal Act in a general sense as creating a system whereby each visa constitutes a permission under the Principal Act to remain in Australia which continues until it expires by effluxion of time or is consciously revoked. Such an approach in construing s 501(2) pays insufficient regard to the terms and legislative purpose of s 501F(3). Section 501F was introduced by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth) ("the 1998 Strengthening Amendment Act"), which also introduced the character test and brought s 501 into its current form. In its terms, s 501F(3) provides that a decision to cancel a visa where a person fails the character test under s 501 "is taken" to be a decision to cancel any other visa held by the person. There is no room for discretion in the matter. The only exception applies if the other visa is within s 501F(3)(b), namely, a protection visa or a visa specified in the Regulations.' 29 The facts in this case are different from the facts in Nystrom but the conclusion is the same. The Tribunal member said that the delegate's decision was probably invalid because the delegate failed to take into consideration that the cancellation of the applicant's transitional permanent visa also led to the cancellation of his absorbed person visa. In reaching that conclusion the Tribunal member followed the reasoning of the majority of the Full Court of this Court in Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs (2005)143 FCR 420. In view of the High Court's decision in Nystrom that conclusion is wrong. The Tribunal member then said that he could not review the decision of the delegate which had the effect of cancelling the applicant's absorbed person visa because no application to review that 'decision' had been made by the applicant. I do not think this observation advances the matter because, as the Minister submitted, there probably was no right of review in relation to that 'decision'. Section 500 of the Act provides that there is a right of review only from the decision of the delegate under s 501. The Tribunal member went on to say that a right of review in relation to the deemed cancellation of the absorbed person visa would be of no practical utility because s 501F(3) operates to cancel that visa upon cancellation of the transitional permanent visa. I do not think I need to comment further on this reasoning because, on the reasoning of the High Court in Nystrom, the Tribunal member would not have erred if he had not taken into account the deemed cancellation of the absorbed person visa. As it happens the Tribunal member did take that into account. At the conclusion of his reasons, he said: 'After considering all the evidence before me and balancing all of the relevant considerations in the Direction, I have decided that it is appropriate to exercise the discretion under s 501(2) of the Act in favour of cancelling the applicant's transitional (permanent) visa Class BF.

I must also take into account that by virtue of s 501F(3) of the Act, the cancellation of Mr Pull's transitional (permanent) visa class BF involves a deemed decision to cancel his absorbed person visa (assuming, as I have, that he is the holder of such a visa). I find that on the facts of this matter, the considerations referred to in the Direction in relation to the exercise of discretion to cancel the absorbed person visa lead to the same issues and the same conclusions. The consequential cancellation of that visa does not therefore lead me to reach a different conclusion in reviewing the delegate's decision.' 30 In conclusion, at the time the Tribunal member made his decision the applicant held both a transitional permanent visa and an absorbed person visa and his submission to the contrary must be rejected. In deciding that the transitional permanent visa should be cancelled the Tribunal member would not have erred if he had not taken into account the fact that would also lead to the cancellation of the absorbed person visa. As it happens, he did take that into account. The fact that there are aspects of the Tribunal member's reasons with which I do not agree does not affect those conclusions. The applicant's first submission must be rejected.

The alleged restriction on the use of s 501(2) 31 The applicant's second submission is that ss 200 and 201 of the Act contain a special power which is subject to a number of limitations before it can be exercised. The particular limitation which is not met in this case is that the offence leading to a term of imprisonment of 12 months or more must be committed within the first 10 years of the applicant's permanent residence in Australia. The applicant submits that the power in s 501(2) is a general power of the same nature and, as a matter of statutory construction, it cannot be used in a way which overcomes the limitations on the exercise of the special power in ss 200 and 201. This argument was put in Nystrom and rejected. Heydon and Crennan JJ said (at [162]-[169]) (footnotes omitted): 'Mr Nystrom's argument that the power to deport and the power to cancel a visa, which will result in removal, deal with the same subject matter is wrong. The power under s 200, as restricted by s 201, to deport non-citizens is a power in respect of the continuing presence in Australia of non-citizens convicted of certain crimes. The power under s 501(2) to cancel a visa of a non-citizen on character grounds (based on a "substantial criminal record") and thereby remove that non-citizen is a much wider power, although it is also for the protection of the Australian community. The powers are distinct and cumulative.

Not only do the powers have different purposes, different criteria apply for their exercise. The criteria in respect of a person's criminal record in s 201(c) and s 501(7) are not co-extensive, although there is some overlap between s 201(c) and s 501(7)(a), (b) and (c). Criteria in s 501(7)(d) and (e) give s 501(2) a wider field of operation than that which is covered by s 201(c).

Moreover, it was not disputed that different consequences follow when the powers are exercised. A person who is subject to a deportation order is subject to discretionary rather than mandatory detention during any challenge (ss 253(8) and (9)), but will then be deported unless the Minister revokes the order. A person who has a visa cancelled is subject to mandatory detention and removal (s 189) but may apply for a protection visa (s 501E).

While the powers are different, with different criteria for their exercise and different consequences when exercised, they are both special powers. The power in s 501(2), construed as it must be, together with ss 501(6) and (7), is not a vague or general power. The line of authority beginning with Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia, upon which Mr Nystrom relied, has no application here as there is no repugnancy between the two powers. In fact, they are consonant with each other.

The provisions have a different legislative history and a different relationship to the constitutional sources of power in s 51(xix) and (xxvii) as already explained. The Act contains two separate but consonant statutory systems for deportation and removal which operate differently, although the final outcome of removal may be the same. Section 201 does not in terms, confer on an alien any "statutory protection" from removal, consequent upon the cancellation of a visa under s 501(2).

Here, s 200 has no application. To that extent, the facts here raise the issue of the interaction between s 200, as restricted by s 201, and s 501(2), more squarely than the facts in Jia Legeng. This distinction provides no reason to reconsider the statement in Jia Legengthat s 501 contains a separate statutory power. In fact, the distinction is an illustration of the discrete nature of the powers in question.

Further, there is nothing in the relevant legislative history, or the terms of the two provisions, which would warrant "reading down" the power in s 501(2), which rests on s 51(xix), by reference to s 201(b)(i) which, while it applies to "non-citizens", derived its language and purpose from the Act's former resting on s 51(xxvii).

Accordingly, the power conferred in s 501(2) is not restricted by the operation of ss 200 and 201.'

32 I refer also to the observations of Gleeson CJ at [2] (footnotes omitted): 'As to the issue concerning the effect, if any, upon s 501(2) of the Migration Act 1958 (Cth) of ss 200 and 201 of that Act, I would make the following comment. The contention that ss 200 and 201 give a person in the position of the respondent a protection or immunity from the exercise of the power conferred by s 501 is a statement of a conclusion, rather than an expression of a reason for reaching that conclusion. If there is such a reason, it must be found in a process of statutory construction. The provisions of s 501(2), on the one hand, and ss 200 and 201 on the other, are not repugnant, in the sense that they contain conflicting commands which cannot both be obeyed, or produce irreconcilable legal rights or obligations. They create two sources of power, by which a person in the position of the respondent may be exposed, by different processes, and in different circumstances, to similar practical consequences. There is nothing novel, or even particularly unusual, about that. It does not of itself mean that only one source of power is available. If, however, by reason of the apparent exhaustiveness with which one provision, or group of provisions, dealt with the position of a person such as the respondent, there were an incompatibility of a kind that required a conclusion that only one provision or group of provisions was intended to apply, then that would be a reason for accepting the respondent's contention. Again, if one provision, or group of provisions, were directed with particularity to the case of a person such as the respondent, and the other were merely of general application, the same could be said. As explained by Heydon and Crennan JJ, and also by Gummow and Hayne JJ, neither proposition can be made good when regard is had to the legislative history and context. In the result, the respondent's contention amounts to an assertion; a statement of an outcome that would be supportive of his freedom to remain in Australia, and in that sense protective of his interests, but without a convincing argument of statutory construction which sustains that outcome. Therefore, it fails.'

The reasoning of Gummow and Heydon JJ is to similar effect (at [60]-[70]). 33 The applicant's second submission must be rejected.

The alleged exercise of the power for a punitive purpose 34 The applicant's third submission is that s 501(2) authorises an impermissible exercise of judicial power in that it authorises the Minister to punish a visa-holder for the crimes he or she has committed and for which he or she has already been punished. To the extent that it does that it is said by the applicant to be invalid. The applicant refers to observations made by Spender J in Shaw v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 402 at [30]-[35]. In the alternative, the applicant submits that if s 501(2) does not authorise an impermissible exercise of the judicial power and is valid, nevertheless, in this case, the power was exercised for the impermissible purpose of punishing the applicant for the criminal offences he had committed. In the context of this submission the applicant referred to the following factual matters:

1. The applicant is a non-citizen of longstanding, which I assume means that he has been in Australia for a considerable period of time.
2. The applicant has two children in Australia.
3. The applicant was the holder of an absorbed person's visa and was entitled to rely upon the nature of the visa, coupled with the protective elements of s 201 of the Act, to assume that he had been absorbed in the Australian community.
4. The applicant has no significant ties with his place of birth and would be liable to live a destitute life.
5. The applicant has been punished by the Australian courts for offences committed in Australia while present here as an absorbed person. 35 In Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 the High Court held that s 501(2) is a valid exercise of the Federal Parliament's power to make laws with respect to aliens. Similar arguments to those put in this case were put to the Full Court of this Court in Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292. The Court considered the authorities relevant to the relationship between laws providing for the deportation of aliens and the cancellation of their visas and Chapter 111 of the Constitution and then summarised the effect of those authorities in the following propositions (at [66]): '1. Section 51(xix) of the Constitutionempowers Parliament to make a law providing for the deportation of aliens for whatever reason Parliament thinks fit, unless the Constitutionotherwise prohibits the making of the law.

Under Chapter III of the Constitution, the adjudication and punishment of criminal guilt by reason of an alleged breach of a law of the Commonwealth appertains to the judicial power of the Commonwealth and cannot be entrusted to the Executive. If, therefore, Commonwealth legislation on its proper construction, purports to authorise the Executive to impose punishment for criminal conduct, the legislation, to that extent, will infringe Chapter III of the Constitution.

Whether legislation conferring power to cancel the visa or order the deportation of a non-citizen is punitive in character is to be determined by construction of the legislation, not by a consideration of the consequences of detention or removal of the individual.

Accordingly, the power to cancel a visa or order the deportation of a non-citizen is not to be regarded as punitive in character merely because exercise of the power involves interference with the liberty of the individual or imposes what the individual may see as sanctions consequential on his criminal connections. Neither can detention incidental to deportation of a non-citizen be characterised as punitive merely because it involves deprivation of liberty.

Legislation conferring a discretion on the Executive to cancel the visa of a non-citizen or to deport a non-citizen is not characterised as punitive if it can fairly be said to protect the Australian community. This is so even where the pre-condition that must be satisfied for the exercise of the power is the conviction of the non-citizen for a criminal offence or the imposition of a minimum period of imprisonment.

Nonetheless, if in a particular case the decision-maker purports to exercise a statutory power to cancel the visa of a non-citizen or to deport the non-citizen or order to punish the non-citizen and not for protection of the Australian community or some other legitimate objective, the exercise of the power may be ultra vires the statute.' 36 The Court said that relevant considerations to the exercise of the discretion under s 501(2) of the Act included the protection of the Australian community and the expectations of the Australian community and that general deterrence, as long as it was not the sole reason for the decision, was a relevant aspect of the protection of the Australian community (at [71], [72] and [75]). Taking those matters into account did not mean that s 501(2) infringed or contravened Chapter 111 of the Constitution (at [73]-[74]). 37 It follows, in my opinion, that the applicant's submission that the power in s 501(2) infringed or contravened Chapter 111 of the Constitution must be rejected. 38 That leaves for consideration the alternative submission that it would be an invalid exercise of the power in s 501(2) of the Act to exercise it solely for the purpose of punishing the applicant for the offences he had committed and that that is what occurred in this case. The proposition may be accepted but there is no evidence that that is what occurred in this case. The Tribunal member carefully considered each of the matters in Direction No 21. Among other things, he said that he attached 'little significance' to general deterrence and he said that the consideration of the best interests of a child or children favoured an exercise in the applicant's favour. Subject to the applicant's fourth submission, which I will deal with in a moment, the Tribunal member considered each relevant matter carefully and there is simply no evidence that he exercised the power for an improper purpose. 39 The applicant's third submission must be rejected.

The alleged failure to have regard to the expectations of the Australian community 40 The applicant's fourth submission is that the Tribunal member failed to give genuine and proper consideration to what the applicant accepted was a relevant matter, namely, the expectations of the Australian community. Direction No 21 deals with this consideration as follows: 'Expectations of the Australian community

2.12 The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision-makers should have due regard to the Government's view in this respect.' 41 The Tribunal member said that the expectations of the Australian community required him to formulate those expectations both objectively and also with reference to the particular person involved in the relevant determination. He noted that there would be a range of views in the community as to the circumstances in which a visa for a non-citizen should be granted or cancelled. He noted that there would be a general expectation in the community that the Act would be administered fairly and humanely. He expressed his conclusion with respect to the expectations of the Australian community as follows: 'The Australian community can reasonably expect any non-citizens to be law-abiding citizens. I have referred above to Mr Pull's long criminal record. His offending has been frequent and regular for more than twenty years. He has been treated leniently in many instances and has been given every opportunity and encouragement to mend his ways, but did not do so. He disregarded the clear warning by DIMIA that his visa was liable to cancellation, and that further offending would lead to a fresh assessment being made with a view to consider cancelling his visa if there were future convictions. No doubt there would be sympathy for Mr Pull, particularly in view of his unhappy childhood and his desire to re-establish contact with his daughters, but taking all things into account, I think that the Australian community would conclude that he has substantially disregarded the laws of Australia, and that his conduct has been disruptive to the community and has exposed members of the community to risk and distress.

Taking all of the evidence into account, I think that this second primary consideration would dictate that the applicant's visa should be cancelled.' 42 The applicant submits that the Tribunal member did not give genuine and proper consideration to the expectations of the Australian community because he did not refer to the following matters:

1. The applicant was a resident of Australia for 25 years and the cancellation of his visa would mean that he would be deported to a country where he has no significant ties and is likely to lead a destitute lifestyle.
2. The applicant is a person who has two daughters who are Australian citizens and there is no evidence to suggest they will ever be able to renew their relationship with the applicant.
3. The applicant has been punished by the Australian courts for offences committed in Australia whilst present here as an absorbed person.
4. There are clear protections afforded to the applicant under s 34(2) and s 201 of the Act and the first respondent is attempting to circumvent those protections by using s 501(2). 43 There can be no doubt that the Tribunal member considered the expectations of the Australian community and it does not follow that simply because he did not mention or place emphasis on particular matters identified by the applicant that he failed to give the matter genuine and proper consideration. In any event, as to the first matter, the Tribunal member was undoubtedly aware of the lengthy period the applicant had been in Australia and that he had no significant ties in the United Kingdom. As to the second matter, he was aware of the fact that the applicant had two daughters and, in considering the matter of the degree of hardship which would be caused to immediate family members lawfully resident in Australia, said that it would be difficult for the applicant's daughters to travel overseas and indeed this might never occur. In other words, it was a matter he took into account. As to the third matter, I have no doubt that the Tribunal member was aware that the applicant had been punished for the offences he committed and that those offences were committed at a time when he had spent a considerable period of time as a part of the Australian community. As to the fourth matter, I would not characterise the proposed exercise of power in this way, and the relationship between s 200 and s 201 and s 501(2) was not a matter the Tribunal member was required to take into account. 44 The Tribunal member did give genuine and proper consideration to the expectations of the Australian community. 45 The applicant's fourth submission must be rejected.

Conclusion 46 The appeal is dismissed. The applicant must pay the first respondent's costs of the appeal. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate: Dated: 23 January 2007 Counsel for the Applicant: P Charman

Solicitor for the Applicant: Westside Community Lawyers

Solicitor for the Respondent: Australian Government Solicitor, Adelaide