Rocca v Minister for Immigration and

REASONS FOR JUDGMENT 1 On 17 February 2006, Mr Rocca, the applicant, applied to the Court under s 39B of the Judiciary Act 1903 (Cth) for judicial review of the decision of the Minister for Immigration and Multicultural and Indigenous Affairs, the first respondent (the minister) made on 5 October 2003 to cancel his BF Transitional (Permanent) Visa under s 501(2) of the Migration Act 1958 (Cth) (the Act). 2 Section 501(2) empowers the minister to cancel a visa if the minister reasonably suspects the visa holder does not pass the character test, and the person does not satisfy the minister that the person passes the character test. A person does not pass the character test if that person has a substantial criminal record (s 501(6)). For the purposes of the character test a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of twelve months or more (s 501(7)). 3 The applicant did not pass the character test because he was sentenced on 18 August 1999, by the County Court of Victoria to seven years and six months imprisonment for trafficking heroin between 1 January 1998 and July 1998. The minister then exercised his residual discretion under s 501(2) against the applicant and cancelled his visa. 4 In previous proceedings, the applicant alleged that the minister failed to accord him natural justice in determining to cancel the visa. The applicant failed in the these proceedings which culminated in a judgment of the Full Court delivered on 10 May 2005 (Rocca v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 71 per Gray, Nicholson and Sundberg JJ). 5 In the amended application for judicial review filed on 26 April 2006, the applicant alleged as follows: C6A On 5 October 2003, the applicant held the following visas: (a) An absorbed person visa pursuant to Section 34 of the Act; (b) A Transitional (permanent) visa pursuant to Regulation 4; (c) A Transitional (permanent) visa pursuant to Regulation 9; (d) An entry permit evidenced by the notation "arrived" stamped on the applicant's passport on 31 August 1996. … C9 The only visa identified in the issues paper was a BF Transitional (permanent) visa granted to the applicant on 29 March 1996. … C12 Further, or alternatively, by virtue of Section 34 of the Migration Act 1958, the applicant is taken to have been granted an absorbed person visa on 31 August 1996. … C14 …, the visa cancellation decision was vitiated by jurisdictional error in that in arriving at his decision, the Minister: (a) failed to consider the type (or types) of visa that the applicant held; (b) cancelled the wrong visa; and - (c) failed to take account of relevant considerations namely that: (i) the applicant was the holder of an absorbed person's visa, and - (ii) the applicant was an absorbed person. (d) failed to take account of the fact that the applicant held multiple visas; alternatively held visas which had been granted by the legislature and/or the Regulations and not by administrative act. (e) alternatively failed to take account of the fact that the visa had been in existence for 38 years. 6 The alleged jurisdictional errors depend on the applicant establishing that he held one or more of the specified visas at the time when the decision to cancel was made on 5 October 2003. This issue will be considered immediately. 7 The applicant was born in Italy on 6 November 1944. He entered Australia on 22 July 1965. When he entered Australia he was granted a permanent entry permit in accordance with s 6(2) of the Act as it then stood. The permanent entry permit allowed the applicant to remain in Australia indefinitely, but the permit ceased on departure (s 9(1)). 8 The applicant then left Australia on 19 June 1981 and returned on 30 July 1981. Section 11A(1) which was inserted by the Migration Amendment Act 1979 (Cth), with effect from 1 November 1979 provided for the issue of a return endorsement to a person who held a permanent entry permit. When the applicant left Australia on 19 June 1981, he was granted a return endorsement as is evidenced by a stamp in his passport. On his return to Australia on 30 July 1981, the applicant was granted an entry permit, again evidenced by a stamp in his passport. 9 The Act was again amended by the Migration Reform Act 1992 (Cth) which came into effect on 1 September 1994. A new system was introduced whereby a non-citizen who did not hold a visa became an unlawful non-citizen. Sections 40(5) and 40(6) authorised the making of transitional regulations to preserve the rights of permanent residents who had entered Australia before 1994. 10 Regulation 9 of the Migration Reform (Transitional Provisions) Regulations 1994 (the Regulations) provided : A non-citizen who, immediately before 1 September 1994, held an old visa of the kind known as: (a) an Authority to Return; or (b) a Return Endorsement; is taken, on 1 September 1994, to have been granted a transitional (permanent) visa permitting the holder: (c) to travel to and enter Australia within 3 years after each departure from Australia; and (d) to remain indefinitely in Australia. Regulation 4 of the Regulations provided: (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. 11 A visa granted pursuant to Regulation 4 or 9 is properly described as a BF Transitional (Permanent) Visa (Regulation 1.06(b)(i) of the Migration Regulations 1994 (Cth)). 12 The Act also provided for a visa known as an absorbed person visa as follows: 34 Absorbed person visas (1) There is a class of permanent visas to remain in, but not re-enter, Australia, to be known as absorbed person 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 section 20 of this Act as in force then applied; is taken to have been granted an absorbed person visa on 1 September 1994. (3) Subdivisions AA, AB, AC (other than section 68), AE and AH do not apply in relation to absorbed person visas. 13 At the time of the 1994 amendments, the applicant was entitled to a BF Transitional (Permanent) Visa under Regulation 4 (the Regulation 4 visa), a BF Transitional (Permanent) Visa under Regulation 9 (the Regulation 9 visa), and an absorbed person visa under s 34. 14 The central question in this application is to determine what visas were held by the applicant on 5 October 2003 immediately prior to the cancellation decision. This in turn requires consideration of the effect on the applicant's visa status of the applicant's departure from Australia on 16 June 1996 and his return to Australia on 31 August 1996. The minister contends that the Regulation 4 visa and the absorbed person visa ceased to have effect when the applicant left Australia on 16 June 1996. The minister further contends that the Regulation 9 visa was cancelled by the minister on 5 October 2003, and that the applicant did not hold any other visa at that time which was available to be cancelled. The applicant, on the other hand, contends that on 5 October 2003, in addition to the Regulation 9 visa, he also held a Regulation 4 visa, an absorbed person visa, and an entry permit granted on 31 August 1996 and that the failure of the minister to appreciate this fact led him into jurisdictional error. I will deal with each of these visas in turn. 15 When the applicant departed Australia on 16 June 1996, the Regulation 9 visa allowed him to return within three years and to remain indefinitely. He returned on 31 August 1996 and thereafter did not leave Australia. As at 5 October 2003, the Regulation 9 visa thus entitled him to remain in Australia indefinitely. It was therefore in effect on 5 October 2003, prior to the cancellation decision being made. 16 The Regulation 4 visa did not permit the applicant to leave Australia and return, but only to remain indefinitely. It ceased to have effect when he left Australia on 16 June 1996 and was thus not available to be cancelled on 5 October 2003. 17 The absorbed person visa allowed the applicant to remain in Australia but not to re-enter Australia (s 34(1)). Section 82(8) of the Act provides: 82 When visas cease to be in effect ... (8) A visa to remain in, but not re-enter, Australia that is granted to a non-citizen in Australia ceases to be in effect if the holder leaves Australia. 18 The minister contended that this section operated to bring the applicant's absorbed person visa to an end when the applicant left Australia on 16 June 1996. 19 The applicant contended that s 82(8) meant that the absorbed person visa ceased to have effect when he left Australia, but operated so that the visa would revive on his return. In order to return the applicant needed to obtain permission to enter Australia. The absorbed person visa did not provide that permission. But once he had obtained permission to re-enter and had returned, so it was argued, the right to remain in Australia was revived. The applicant said that the phrase ceases to be in effect in s 82(8) contemplated a temporary cessation and revival of the visa. By way of illustration the applicant referred to s 82(3) which deals with bridging visas as follows: 82(3) A bridging visa held by a non-citizen ceases to be in effect if another visa (other than a special purpose visa) for the non-citizen comes into effect. 20 The revival of a bridging visa occurs by operation of s 68(4) which provides: (4) A bridging visa (the reactivated bridging visa), held by a non-citizen, that has ceased to be in effect under subsection 82(3), will come into effect again during the visa period for the visa if: (a) the non-citizen does not hold a substantive visa that is in effect: and (b) either: (i) the non-citizen does not hold any other bridging visa; or (ii) the reactivated bridging visa is determined, in accordance with the regulations, to be the most beneficial of the bridging visas held by the applicant. 21 The presence of s 82(3) and s 68(4) does not assist the applicant. Rather they support the construction advanced by the minister. Section 68(4) demonstrates that a specific provision is necessary to effectuate a revival of a bridging visa that had ceased to be in effect. These sections suggest that, absent such express provision, the phrase ceases to be in effect used in s 82 is intended to mean that the effect of the visa is permanently ended. 22 The applicant submitted that the grant of the absorbed person visa to remain in, but not to re-enter demonstrates an intention that the visa revives upon the holder returning to Australia. Otherwise, it was suggested, the words but not re-enter would be superfluous. Their purpose is to require the holder of an absorbed person visa who leaves Australia to obtain an entry permit on return. On return, the right to remain is again available to the visa holder. 23 The argument hinges on the proposition that the words but not re-enter are superfluous if there is no revived right to remain. However, those words have a more obvious purpose, namely, to stipulate that the visa is not a permission for the holder who leaves Australia to return. 24 The clear words of s 34(1) interpreted by reference to s 82(8) mean that an absorbed person visa permanently ceases to have effect when the holder leaves Australia. Thus, when the applicant left Australia on 16 June 1996 his absorbed person visa was no longer available to him. It did not revive on his return. 25 The applicant argued, in the alternative, that by operation of s 34(2) he was granted a further absorbed person visa on 31 August 1996, when he returned to Australia. This conclusion depends on reading s 34(2)(c) as disqualifying a person from the grant of an absorbed person visa only if the absence from Australia occurred between 2 April 1984 (s 34(2)(a)) and 1 September 1994. The applicant argued that Parliament intended that absences after 1 September 1994 would not disqualify a person from obtaining an absorbed person visa. 26 It can be accepted that s 34(2)(c) is only concerned with absence from Australia between 2 April 1984 and 1 September 1994. However, s 34 provides for the single grant of an absorbed person visa on 1 September 1994. If, on 1 September 1994, a non-citizen fulfilled the criteria set out in s 34(2)(a) - (d), the person is taken to have been granted an absorbed person visa. There is no provision for the grant of the visa at any other time. As discussed above, if the holder of an absorbed person visa left Australia after 1 September 1994, then the absorbed person visa permanently ceased to have effect. This was the situation of the applicant. 27 The applicant also contended that on 5 October 2003, he held an entry permit evidenced by the notation "arrived" stamped in his passport on 31 August 1996. As stated earlier, the 1994 amendments introduced a visa system for non-citizens, replacing entry permits altogether. In 1996, entry permits were no longer granted. Perhaps appreciating this difficulty, the applicant raised a variation of this argument in a summary of submissions, filed on the eve of the last hearing day. The applicant contended that the notation "arrived" stamped in his passport constituted another visa, which the minister had not cancelled and hence, which remained in existence. However, the applicant did not point to any basis in the legislation which would establish that the stamp constituted a visa. The stamp merely indicates that the applicant had arrived in Australia. 28 It follows that, on 5 October 2003, the only visa held by the applicant which the minister could cancel was the Regulation 9 visa. 29 The applicant then argued that the minister did not cancel that visa. Rather he purported to cancel a visa which he thought was granted on 29 March 1996. In fact no visa was granted on that date, and no such visa existed. The minister, therefore, cancelled a non-existent visa. He failed to appreciate the subject matter of the jurisdiction he was empowered to exercise, and thereby committed jurisdictional error. 30 The evidence on which the submission is based is contained in an issues paper prepared by the department for the purpose of obtaining the minister's decision on the cancellation of the applicant's visa. The issues paper is divided into parts A - E. Part D is a record of the decision made by the minister. He is given a number of options and is asked to delete those which are not applicable. In this case, the minister deleted all the options other than the option to cancel the visa. Part E contains the reasons for the decision. Paragraph 74 of the issues paper states that the minister is required to take into account all the material contained in the issues paper, including the material in the annexures A - M. I infer that the minister acted in accordance with that paragraph. 31 Part A of the issues paper is entitled Personal Details. After setting out the applicant's name, date of birth, marital status, and other like details, it records the immigration history of the applicant. It indicates that he arrived in Australia on 22 July 1965 and was absent from Australia between 19 June 1981 and 30 July 1981, and between 16 June 1996 and 31 August 1996. It then states that the visa in effect is a BF Transitional (Permanent) Visa and the grant number is 3030300001369. 32 Part B of the issues paper addresses the question whether the applicant passes the character test. Part C considers the issues relevant to the exercise of the residual discretion whether to cancel the visa. At the beginning of this section, paragraph 12 sets out the steps taken to notify the applicant of the intention to consider cancellation of the visa, and records the materials received or gathered in response. At the end of paragraph 12 there appears a list of the materials relating to notification, and the applicant's response. The first item in the list refers to the written notice of intention to consider cancelling the visa which was given to the applicant. This notification is said to be at annexure E. The notification at annexure E addressed to the applicant commences as follows: You are currently the holder of a permanent resident visa granted to you on 29 March 1996. This visa is currently your sole authority to travel to and enter Australia or remain in Australia. 33 The reference in the notification to a visa granted on 29 March 1996 is said by the applicant to prove that, when the minister made the cancellation decision, he intended to cancel a visa granted on 29 March 1996. In fact there was no such visa, and hence, so the applicant argues, the minister purported to cancel a non-existent visa. 34 The applicant's contention that the minister intended to cancel a visa granted on 29 March 1996 should not be accepted. The issues paper identifies the visa to be cancelled as a BF Transitional (Permanent) Visa. I infer that the minister knew that such a visa is taken to have been granted on 1 September 1994 by operation of the statute which he administers. The notification in annexure E was presented to the minister for the purpose of informing him that the applicant was notified of the intention to consider cancelling the visa. It was not put to the minister to identify the date on which the visa was granted. I infer that the minister concluded that the reference to 29 March 1996 was a mistake because the visa which he was asked to consider cancelling was a BF Transitional (Permanent) visa which, by operation of Regulation 9, is taken to have been granted on 1 September 1994. 35 The present case is distinguishable from the facts of Minister for Immigration and Multicultural and Indigenous Affairs v Schwart [2003] FCAFC 229 (Schwart) upon which the applicant relied. In that case, the issues paper began with the heading: ISSUES FOR CONSIDERATION OF POSSIBLE CANCELLATION OF SUBCLASS 155 - FIVE YEAR RESIDENT RETURN VISA UNDER S 501(2) OF THE MIGRATION ACT 1958. The applicant did not hold such a visa and the conditions of the visa actually held by him where materially different from the conditions attaching to the visa referred to in the heading. The Full Court read the decision of the minister which was recorded at the end of the issues paper as referrable to the visa which the applicant did not hold. A fair construction of the issues paper in the present case is that the minister cancelled the Regulation 9 visa recorded in the section of the issues paper which described the nature of the visa in effect. The heading of the issues paper in the present case, unlike that in Schwart, did not identify the particular visa under consideration. 36 At the last moment in the hearing, Mr Nash QC, who appeared as counsel for the applicant, raised a further argument at the end of his reply. The argument relied on the evidence of Mr Umali who swore an affidavit on behalf of the minister and who was cross examined on it. Mr Umali is a systems analyst/programmer contracted to the department. He exhibited to his affidavit a computer printout of the visa details of the applicant. This showed that the visa granted to the applicant was numbered 3030300001369, and that this visa was cancelled on 5 October 2003. The visa number corresponds with the visa number referred to in the issues paper. The printout records that the visa was granted on 19 May 1981. In cross examination, Mr Umali explained that the computer system showed that this information was recorded at Melbourne Airport by an immigration officer when the applicant was granted the return endorsement. Both by date of grant and grant number, the record on the printout of the grant of the return endorsement corresponds to the stamp to the same effect in the applicant's passport. 37 Mr Nash submitted that this computer record showed that the minister cancelled the visa which was granted on 19 May 1981. That could not have been the Regulation 9 visa because the Regulation 9 visa was taken to have been granted on 1 September 1994. Consequently, so it was argued, the visa that was cancelled must have been the Regulation 4 visa. Presumably, the applicant intended to suggest that the Regulation 9 visa remains in effect. 38 The argument is unsustainable. First, the reference in the computer system to the date of grant of 19 May 1981 was a reference to the date of the grant of the return endorsement which was the foundation for the Regulation 9 visa. To qualify for a Regulation 9 visa, it was necessary to hold, inter alia, a return endorsement. Second, the grant of the return endorsement was not relevant as a qualification for the Regulation 4 visa. There was no purpose in recording the date of grant and grant number of the return endorsement if the record was intended to refer to the Regulation 4 visa. Finally, the Regulation 4 visa ceased to be in effect when the applicant left Australia on 16 June 1996. As earlier explained, there was no regulation 4 visa to cancel in October 2003. 39 It follows from these reasons that the applicant has not established the factual foundations upon which the alleged jurisdictional errors depend. In view of this conclusion it is unnecessary to consider the estoppel arguments relied upon by the respondents. The application must be dismissed with costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.