Ruhl v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant was born in Germany on 16 September 1941. He arrived in Australia in 1960. He was the holder of a Resident Return Class Visa which permitted the applicant to stay in Australia for an indefinite period. The applicant married an Australian citizen in 1968 and they have two sons born in 1968 and 1971 respectively. The applicant's wife and sons are Australian citizens. 2 On 18 August 2000 the applicant was convicted on his own guilty plea of one count of permitting premises to be used for the purpose of a drug offence contrary to the provisions of the Drugs Misuse Act 1986 (Qld) and one count of producing a dangerous drug specified in Schedule 2 of the Drugs Misuse Regulations 1987 in a quantity which exceeded the quantity specified in Schedule 3 of those Regulations in contravention of s 8 of the Drug Misuse Act 1986 (Qld). The applicant was sentenced to four years imprisonment on each count such sentences to be served concurrently with a recommendation that the applicant be considered for parole after a period of nine months. In making the recommendation for early parole the sentencing judge took into account that the applicant had no previous drug convictions, had made a timely plea of guilty and had rendered assistance to the authorities. 3 By letter dated 23 October 2000 from the delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") to the applicant headed "NOTICE OF INTENTION TO CANCEL VISA UNDER SUBSECTION 501(2) OF THE MIGRATION ACT 1958" the delegate gave the applicant notice that, because of the convictions and sentences, he had for the purposes of s 501(7)(c) of the Migration Act 1958 (Cth) ("the Act") a substantial criminal record and was, in consequence, required to establish that he, in fact, passed the character test in accordance with s 501(2)(b) of the Act. The letter invited the applicant to provide material to the Minister if he wished to do so, such material to address the following: ". the need to protect the Australian community; including: - the seriousness and nature of your conduct, including the number, seriousness, frequency of offences; - the likelihood that the conduct may be repeated, including any risk of recidivism; - whether visa cancellation may prevent or discourage similar conduct; . the expectations of the Australian community with regard to respect for the laws of Australia; . the best interests of any children with whom you have an involvement; . other considerations including: - the extent of disruption to your family, business and other ties to the Australian community; - whether you are married to, or in a defacto or interdependent relationship with an Australian citizen or permanent resident; - the degree of hardship which would be caused to immediate family members lawfully resident in Australia; - the composition of your family, both in Australia and overseas; - the likelihood of you seeking to evade any outstanding legal matter or ongoing liability, or breaching any conditions attached to the outstanding legal or ongoing matter; - any evidence of rehabilitation; - the purpose and duration of your stay in Australia, including any significant compassionate circumstances; - whether or not you have been formally advised in the past by an officer of this Department about conduct which may bring you within the criminal deportation provisions, or the visa cancellation provisions; . any other relevant factors you may wish to advance as mitigating factors" 4 The letter also stated: "In reaching a decision whether or not to cancel, the Minister or his or her delegate will have regard to the matters noted above and the attached Minister's Direction No. 17 titled "Direction under Section 499 - Visa Refusal and Cancellation under Section 501 Migration Act 1958"." 5 The letter together with a copy of s 501 of the Act and a copy of the "Direction under Section 499 - Visa Refusal and Cancellation under Section 501 Migration Act 1958" was delivered to the applicant on 30 October 2000. 6 On 27 November 2000, the applicant lodged written submissions seeking non-cancellation of the visa on the basis of the material contained in the submissions. 7 On 20 March 2001, the Department of Immigration and Multicultural Affairs wrote to the applicant advising him that the Minister had decided to cancel the applicant's visa pursuant to s 501(2) of the Act. He was advised that he did not pass the Character Test because he had a substantial criminal record as defined by s 501(7) of the Act. Enclosed with the notice was "a copy of the decision record that sets out the reasons for the decision (other than non disclosable information)". 8 The decision record comprises a thirteen page memorandum to the Minister from the Department together with annexures. The purpose of the minute as appears from para [1] was to seek the Minister's decision on: s whether the applicant passes the character test in s 501(6) of the Act; and s if not, whether his visa should be cancelled pursuant to s 501(2) of the Act. 9 The memorandum contained the following statement under the heading "DISCRETION": "[5] If you are satisfied that Mr RUHL doe not pass the character test you must consider the exercise of your discretion to decide whether Mr RUHL should be permitted to remain in Australia. In exercising your discretion you should consider the guidelines of your Direction No. 17 made under s.499 of the Migration Act 1958. While you are not bound by the section 499 direction on character in relation to exercising your discretion, it is a useful guide for the matters that you should consider and contains three primary considerations and a number of other relevant considerations that need to be addressed." 10 The memorandum under the hearing "Primary Considerations" then dealt with the following matters: s Protection of the Australian Community (a) seriousness and nature of conduct (b) likelihood that the conduct may be repeated (including any risk of recidivism) (c) general deterrence s The Expectations of the Australian Community s The Best Interests of the Children 11 The memorandum next proceeded to deal with other matters under the heading "Other Considerations". Before discussing the other circumstances the following paragraph appeared: "[34] Paragraph 2.17 of the Minister's Direction provides that other considerations may be taken into account by the decision-maker. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that they be given less individual weight than that given to the primary considerations." The memorandum then stated: "Any other relevant considerations [43] All matters raised have been addressed in line with the Direction. OTHER MATTERS RAISED BY/ON BEHALF OF MR RUHL [44] All matters raised have been addressed in line with the Direction." The memorandum concluded: "MINISTERS DECISION ON CANCELLATION UNDER S.501(2) [46] 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) the Minister's Direction under s499 of that Act and the non-citizen's comments (if any), and have decided that: Please delete whichever is NOT applicable: (a) I am satisfied that George Dieter RUHL passes the character test OR (b) I reasonably suspect George Dieter RUHL does not pass the character test and Georg Dieter RUHL has not satisfied me that he passes the character test BUT I have decided NOT to exercise my discretion to cancel the visa OR (c) I reasonably suspect Georg Dieter RUHL does not pass the character test and Georg Dieter RUHL has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION TO CANCEL THE VISA so I hereby cancel the visa Philip Ruddock Minister for Immigration and Multicultural Affairs Date: 6.3.01" 12 Paragraphs (a) and (b) were struck out and the Minister signed and dated the document in the places indicated. 13 On 30 March 2001, the applicant filed an application for an order for review of the decision made on 6 March 2001 to cancel the applicant's visa. The application was amended by leave of the Court granted on 21 May 2001. 14 The applicant relied upon two grounds in support of his application to have the decision of the Minister set aside. Those grounds were: "1. The Respondent erred in applying a "Direction - Visa Refusal and Cancellation under section 501 - No. 17" purportedly made under section 499 of the Migration Act 1958 ("the Act") when that Direction was invalid. Particulars (a) The Direction was inconsistent with the Act and invalid insofar as purported to fetter the Minister's discretion under section 501(2) of the Act by prescribing that greater weight was to be given to "primary considerations" than "other considerations"; 2. The Respondent failed to comply with the Direction in breach of section 499(2A) of the Act. Particulars (a) The Respondent failed to take into account the public interest and the benefit to the Australian community resulting from the Applicant's cooperation with the police in the prosecution of a co-offender;" 15 The applicant submits that s 501 of the Act confers an unfettered discretion upon the Minister to refuse or cancel a visa once the character test had been resolved against the applicant. In the absence of provisions to the contrary he submits the Minister cannot fetter the exercise of the discretion under s 501. Although the Minister may formulate a policy to guide the exercise of the discretion under s 501 of the Act, the applicant submits that such a policy must not create a fetter purporting to limit the range of discretion conferred by s 501 of the Act: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 421 (FC); Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640-641; Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 207. The applicant submits that pars 2.2 and 2.17 of Direction No 17 have the effect of fettering the discretion under s 501 of the Act and are therefore inconsistent with the Act. Being inconsistent with the Act the directions, he submits, are not authorised (see: s 499(2)) and are unlawful. To give effect to the direction containing as it does a fetter on the discretion is objectionable and a sufficient error of law to justify the setting aside of the decision. In this respect the applicant relies upon the decision of Dowsett J in Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514. 16 The applicant further submits that there is a requirement under s 501 of the Act, that the Minister must take into account the public interest because the subject matter of s 501 concerns public interest issues relating to criminal conduct and the character of visa holders as reflected by the criminal history of the visa holder, and, the public interest in Australian citizens not being exposed to criminal activity. The applicant submits that there is a clear and legally recognised public interest in the encouragement of persons to assist in the exposure and prosecution of offenders even where the disclosure is made by an offender: Bulger v Queensland Community Corrections Board [1994] 2 Qd R 239 at 245; Malvaso v The Queen (1989) 168 CLR 227 at 239. 17 The applicant submits that upon a proper construction of s 501 the Minister was required to consider whether, in the exercise of the discretion under the section, there was a public interest in declining to cancel the visa so as to encourage persons in the position of the applicant to assist the authorities in the exposure and prosecution of persons responsible for criminal activity in Australia. The applicant submits that the Minister in limiting his consideration of the public interest, as indicated in the decision reasons, wrongly applied the legal test required by s 501 of the Act. 18 The Minister submits that the applicant has failed to discharge the onus of showing that he clearly fettered his discretion, and, that the contentions of the applicant do not go beyond mere surmise which is an insufficient basis to set aside the decision: Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675 at 680; R v Marshall: Ex parte Baranor Nominees Pty Ltd [1986] VR 19 at 32. 19 The respondent further submits that directions, including Direction No 17, promulgated under s 499 of the Act do not bind the Minister: Halmi v Minister for Immigration and Multicultural Affairs [2000] FCA 113 at [20], Damanik v Minister for Immigration and Multicultural Affairs [2000] FCA 771 at 6; Misiura v Minister for Immigration and Multicultural Affairs [2001] FCA 133 at paras [11]-[14]. And also submits that there is no evidence that the Minister regarded himself as bound by Direction No 17. 20 The respondent submits that there is nothing objectionable in Direction No 17 and that the decision in Aksu is distinguishable because there was in the decision record in that case a clear statement that the Minister was bound to apply the direction. There is no such statement in the decision record in the present case. Alternatively, the respondent submits that the decision in Aksu was wrongly decided. 21 Section 501 of the Act provides, so far as is presently relevant: "501(2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test." The character test is defined by s 501(6). 22 It is not in dispute that having regard to the applicant's conviction and imprisonment he did not pass the character test as defined by s 501(6) of the Act. 23 In the present case the Minister himself exercised the discretion under s 501. In those circumstances the only available avenue of review is under s 476 of the Act. 24 Direction No 17 which was promulgated under s 499 of the Act is dated 16 June 1999 and took effect from that date. Para 2.2 under the heading "Weight of Considerations" provides: "2.2 The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraphs 2.3 - 2.16 and other considerations are set out at paragraph 2.17 - 2.23. Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa. Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations." 25 The primary considerations are: (a) the protection of the Australian community, and members of the community; (b) the expectations of the Australian community; and (c) in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children. 26 The directions dealing with those considerations are found in pars 2.4 to 2.16 inclusive. 27 The directions, under the heading "OTHER CONSIDERATIONS" provide in para 2.17: "When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that they be given less individual weight than that given to the primary considerations. These other considerations may include: (a) the extent of disruption to the non-citizen's family, business and other ties to the Australian community; (b) genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen: ● in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship; (c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependent on the non-citizen for support which cannot be provided elsewhere; (d) family composition of the non-citizen's family, both in Australia and overseas; (e) the likelihood of the non-citizen seeking to evade any outstanding legal matter or on-going liability; (f) the likelihood of the non-citizen breaching any conditions attached to the outstanding legal or on-going matter, any cost or bilateral implications of such a breach (eg extradition); (g) the nature and seriousness of the offence(s) or alleged offence(s) (in the context of seeking to evade an outstanding legal matter); (h) any evidence of rehabilitation and any recent good conduct; (i) whether the application is for a temporary visa or permanent visa; (j) the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and (k) the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501." 28 The Directions finally deal with the issue of International Obligations which are not relevant to the present application. 29 The Minister did not give considered specific reasons for his decision to cancel the applicant's visa and to deport him. Rather, the Minister adopted the decision record, a copy of which was provided to the applicant, as the reasons for his decision. Such a course is open to the Minister and constitutes a sufficient compliance with s 501G(1)(e) of the Act: Re Ruddock, Minister for Immigration and Multicultural Affairs, Ex parte Truong Van Luy (HCA, unreported, M14 of 2001, judgment given 22/3/2001, p 54 per Hayne J). 30 The procedure adopted by the Minister in Truong Van Luy is the same as that adopted in the present case. As to that procedure Hayne J concluded after a consideration of the documentation: "The "Issues for Consideration" document that was prepared in Mr Truong's case dealt with each of those primary considerations. It then went on to deal with certain other considerations thought to bear upon Mr Truong's case including whether Australia owed protection obligation to Mr Truong under the relevant Refugees Convention. In my opinion, it is not arguable that this document alone or this document in conjunction with the notice insufficiently complied with the obligation imposed by section 501G(1)(e). Read as a whole, the document reveals the matters that were before the Minister, assigned to various of them particular weight, and it was on the basis of that information - and I interpolate - only that information, that the Minister then reached the decision which he did. In any event, as I have said, the matter is put beyond doubt by the terms of the notice that were given to Mr Truong that the decision record sets out the reasons for the decision that was reached." 31 The approach taken by Hayne J leads to the same conclusion in the present case namely that the information which was before the Minister was as identified in decision record and he assigned to the matters referred to in the reasons the weight which was identified in the decision record as having been assigned to the matters. As appears from paras [34], [43] and [44] of the decision record the decision record was prepared and weight given to the primary considerations and the other considerations in accordance with the provisions contained in Direction No 17. Further, the applicant was told by letter of 23 October 2000 that such a course would be followed and the Minister under his own signature has stated that he had considered the Minister's Direction under s 499 of the Act. 32 In these circumstances it is not a question of whether the Minister was bound by the direction or regarded himself as bound by the direction. Rather, it is whether the Minister voluntarily applied the provisions of Direction No 17 to his decision-making and thereby unlawfully fettered his discretion under s 501 of the Act. 33 In my view it is clear, beyond argument on the material that the Minister voluntarily applied the provisions of Direction No 17 to the exercise of his discretion under s 501 of the Act when he adopted as his own the reasoning contained in the decision record; it is not a mere matter of surmise that he did so. 34 It is no answer to submit, as the Minister does, that it was open to him to adopt and apply the substance of Direction No 17 as a matter of policy. The limits on the development and use of policy were identified by Brennan J in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640-641: "Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute (see Murphyores Incorporated Ltd v The Commonwealth (1976) 136 CLR 1; Drake's case, supra, at 589, and the cases there cited). Also, it would be inconsistent with ss 12 and 13 of the Migration Act if the Minister's policy sought to preclude consideration of relevant arguments running counter to an adopted policy which might be reasonably advanced in particular cases. The discretions reposed in the Minister by these sections cannot be exercised according to broad and binding rules (as some discretions may be: see, eg, Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149). The Minister must decide each of the cases under ss 12 and 13 on its merits. His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative. A Minister's policy, formed for the purposes of ss 12 and 13 of the Migration Act, must leave him free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the Minister will make in the circumstances of a given case. That is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the Minister usually applies. There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion intact while guiding the exercise of the power. …" The observations of Brennan J are not limited to ss 12 and 13 of the Act and apply equally to the exercise of the discretion under s 501(2). 35 The distinctions relied upon by the Minister to distinguish the decision of Dowsett J in Aksu are of no relevance when they go only to the mechanism by which the Minister came to apply the provisions of Direction No 17 to the exercise of the discretion under s 501. In the present case there was material before the Minister to indicate that he was not bound to apply the direction. However, he was encouraged to do so for reasons of consistency of approach. Having applied the direction the relevant issue in both Aksu and the present case is whether the application of the direction fettered unlawfully the exercise of the discretion. 36 In Aksu, Dowsett J said (at paras [21] to [24] inclusive): "There is little valid distinction for present purposes between protection of the Australian community and the expectations of the Australian community. Each is really a function of the seriousness of the person's history of misconduct. Nonetheless the factors which are identified as relevant are generally fair and reasonable, if repetitive. A matter of concern, however, is the use of categories (primary and other considerations) and the prescription that: … no individual considerations can be more important than a primary consideration, but … a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa. This appears to mean that in every case, considerations concerning protection or expectation must be treated as at least equally important as any non-primary consideration, without regard to the facts of the case. Elsewhere, the Direction invites a balancing exercise which would normally involve an assessment of all relevant factors, having regard to their significance in the case in question. The Direction appears to fetter that process to the extent that it prescribes that some factors can never have more weight than others. The qualification that "a primary consideration cannot be conclusive in itself" is of little effect. Two primary considerations, protection and expectations will be present in almost all cases, militating in favour of refusal or cancellation of the visa. Where there are two primary considerations, and no other consideration can have more weight than either of them standing alone, an almost mathematical logic compels a decision which upholds those primary considerations. Further, as the primary considerations are really direct outcomes of the person's bad character, the effect is that once he or she fails the character test, there is virtually a prescription in favour of refusal or revocation of the visa. This is inconsistent with the unfettered discretion conferred by s 501. It is one thing to say that some factors should generally be treated as more important that others. This is the situation with which Sackville J was concerned in Bustescu. It is quite another thing to say that a particular consideration must always be treated as at least equally important as another consideration without regard to the facts of the case. Section 501 prescribes failure to satisfy the character test as a condition precedent to the exercise of the discretion to refuse or cancel. It does not create any presumption as to the way in which that discretion should be exercised. The unfettered nature of the discretion inevitably implies that in particular circumstances any one factor may, at least theoretically, outweigh any other possibly relevant factor." 37 I agree with Dowsett J for the reasons that he has given that Direction No 17 is "inconsistent with the intention contained in s 501 that the discretion be unfettered". 38 I agree with Dowsett J that Direction No 17 and the Ministerial Direction issued on 21 December 1998 pursuant to s 499 of the Act, in respect of the exercise of the discretions to deport under ss 200 and 201 of the Act, are materially different and that Direction No 17 operates to limit the exercise of discretion in a way not provided for in the 1998 direction. For that reason the decisions in Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713 and Lau v Minister for Immigration and Multicultural Affairs [2000] FCA 698 are not determinative of the issues in the present case. 39 In the present case as appears from the decision record and the Minister's correspondence, the Minister has not merely chosen to place more weight upon the primary considerations than upon the other matters having regard to the facts of the case. He has accorded pre-eminence to the primary considerations and denied the possibility that the other matters particular to the circumstances of the applicant were entitled to greater importance than a primary consideration in the exercise of an unfettered discretion under s 501 of the Act. He has adopted this course because he applied the policy contained in Direction No 17 which directed such an approach to the exercise of the discretion. 40 In my view, the fettering of the discretion constituted an error of law for the purposes of s 476(1)(e) of the Act. 41 The personal circumstances of the applicant, including his assistance to the authorities if not taken into account as a separate head of public interest required to be considered under s 501 as contended for by the applicant, as disclosed in the materials constituting the decision record are such that the error of law could have effected the outcome of the case. That is sufficient reason to order that the decision be set aside: Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513 (FC) at 519. 42 Having regard to my conclusions on the first ground it is unnecessary to determine the second ground advanced by the applicant. 43 The Minister's decision will be set aside and the matter returned for further consideration according to law. 44 Costs should follow the event. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.