Schwart v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant is a German citizen. He arrived in this country with his parents in December 1984. He entered this country and, at least until the events that lead to these proceedings, continued to reside here under a Residence Visa Category K1412. For constitutional purposes the applicant is an "alien" (see Re Minister for Immigration and Multicultural Affairs; ex parte Te (2002) 193 ALR 37) ("Te"). 2 During the period 1999-2001 the applicant committed a number of criminal offences for which he was convicted and imprisoned. Those offences included breaking and entering, non-aggravated serious criminal trespass, common assault and various theft offences. He was imprisoned to five terms of imprisonment totalling twenty-seven months. 3 On 5 February 2003 the respondent, acting pursuant to section 501(2) of the Migration Act 1958 (Cth) ("the Act") purported to cancel the applicant's visa. The decision of the respondent was expressed as follows: "I have considered all relevant matters including (1) an assessment of the Character Test as defined by s 501(6) of the Migration Act 1958, (2) my Direction under s 499 of that Act and Mr Schwart's comments and have decided that: I reasonably suspect that Mr Schwart does not pass the character test and Mr Schwart 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." 4 The legal effect of the cancellation of a visa, at least in this case, is that the applicant became an "unlawful non-citizen" liable to detention (see s 189 and s 196 of the Act). He was detained on 12 February 2003 and remains in detention. 5 Section 501 of the Act provides, so far as is relevant: "501 Refusal or cancellation of visa on character grounds (1) … (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. … (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); or (b) …. Otherwise, the person passes the character test. (7) For the purposes of the character test, a person has a substantial criminal record if: … the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; …" 6 It is clear from the terms of subs (6) and subs (7) of s 501 that the applicant did not pass the character test. On that basis it is clear that the respondent had a discretion under s 501(2) of the Act to cancel the applicant's visa. 7 It is clear that the Minister's decision took account of and was based upon a Departmental report. That report was headed in bold letters: "ISSUES FOR CONSIDERATION OF POSSIBLE CANCELLATION OF SUBCLASS 155 - FIVE YEAR RESIDENT RETURN VISA UNDER S 501(2) OF THE MIGRATION ACT, 1958" The reference in the heading to the applicant's visa as a "Subclass 155 Five Year Resident Return Visa" is in error. So much is admitted. 8 The Departmental Report is some 19 pages long plus annexures. Other aspects of the report do correctly set out the facts. For example, at the bottom of pages one and the top of page two the following appears: "Immigration History of Visa Holder Date of entry into Australia 2nd December, 1984 Visa Class Residence Visa Category K11412 Visa Expiry date N/A Stay Period of Visa Indefinite Previous Absences from Australia Nil " Pages 15-16 of the Report refer to the fact that the applicant has a family living in Australia comprising at least his parents and a brother. Otherwise the report deals generally with the applicant's criminal history, notwithstanding that it was plain from the public record that the applicant could not pass the character test. Apart from the above information there is little or no information within the report dealing with the extent or otherwise to which the applicant was integrated into the Australian community. This information would obviously have been of interest to the Minister, pointing, as it does, to whether or not "the activity of immigration has come to an end" (Gleeson CJ in Te at [26]. Also Gummow J at [108]). 9 (I note that in the course of submissions I was very critical of the Departmental Report on the basis that it did not contain information which, it seemed to me, the Minister should have been given if only as good practice. It would appear that the copy of the report on which I was then relying was missing several pages with the result that my criticism of the report, or at least the vigour of it, was unfair). 10 The annexures to the report do deal in some more detail with this issue of integration. In particular, the applicant's letter to the Department dated 25 June 2002 does so in some detail as does a further letter of 22 January 2003 (which also reveals that the applicant has a half-sister living in Australia who is an Australian citizen). The Minister's decision refers to "Mr Schwart's comments", but it is not clear to me at least whether this refers to the whole of the letters or only those parts of the letters extracted in the Report. Although those extracts are extensive they do not include all of the information in relation to integration. 11 Finally, by way of background, I note that the notice given to the applicant of the cancellation of his visa pursuant to s 501G of the Act described his visa as a "Special category Visa (Sub-Class 444)", a visa applicable only to citizens of New Zealand. Apart from the further embarrassment to the Department, it is not suggested that this further error is otherwise relevant to the issues before me. 12 The applicant has instituted proceedings in this Court for judicial review pursuant to s 39B of the Judiciary Act 1903 (Cth). The applicant also seeks various ancillary orders, including habeas corpus and declarations. 13 The powers of this Court on any review are limited in a number of ways. This includes the limitations within s 39B of the Judiciary Act 1903 (Cth) (including whatever limitations are contained within s 75(v) of the Commonwealth Constitution). It also includes the provisions of s 474 of the Act as understood in the light of the recent High Court decisions in S134/2002 v Commonwealth of Australia[2003] HCA 2 ("S134") and S157/2002 v Commonwealth of Australia[2003] HCA 2 ("S157"). Section 474 provides: "474 Decisions under Act are final (1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. (2) In this section: "privative clause decision" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5). (3) A reference in this section to a decision includes a reference to the following: (a) granting, making, suspending, cancelling, revoking or refusing to make an order or determination; (b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa); (c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument; …"

14 The applicant argues that, by reason of that error in the report made to the Minister: (a) The Minister has not cancelled any visa held by the applicant with the effect that he still holds a visa. (b) Alternatively, that the Minister's exercise of discretion under s 501(2) of the Act wholly miscarried with the effect that the decision was invalid and that the applicant still holds a visa. 15 In answer the respondent says that: (a) The question of what visa was cancelled is to be determined as a matter of substance by having regard to the decision made and the surrounding circumstances. If this is done then it is clear that the visa to which the decision is directed is in the Permanent Residence visa held by the applicant; and (b) Even if the Minister did make an error in the determination of what category of visa was held by the applicant, it was an error within jurisdiction and this Court cannot interfere. In this regard Ms Maharaj, counsel for the respondent, drew attention to the provisions of s 501F(3) of the Act. That section has the effect that the cancellation of one visa has the consequence at law that all other visas are automatically cancelled. The respondent submitted that that effect necessarily meant that the nature and character of a visa were not critical to the decision under section 501(2) of the Act. 16 Given the nature of these proceedings it has been necessary to deal with them expeditiously. This includes the preparation of reasons. I will set out my reasons in a summary way: (a) I am satisfied that the Minister intended to cancel the visa held by the applicant. (b) I am not satisfied, on the material before me, whether the Minister understood, at the time of making that decision, that the applicant's visa was a permanent resident visa category K1412, rather than a five year resident return visa subclass 155. On the face of it the information before the Minister was inconsistent. There is no material before me which would suggest that that inconsistency resulted in any request for clarification. In the absence of any clarification it is not possible to form any view as to what the Minister understood. (c) The question of what is a statutory precondition to jurisdiction involves the interpretation of the relevant statutory provision in light of the statutory purpose: see DCT v Woodhams (2000) 169 ALR 503 at 512-513. In my view it is clearly a precondition to the exercise of the Minister's jurisdiction under section 501(2) of the Act that, as a matter of objective fact there is in existence "a visa". Further, in my view the Act and the Regulations create a complex scheme for the identification of particular visas with particular powers and entitlements. Some of these are very different. One need only contrast the rights applicable to a permanent resident visa, a student's visa and a tourist visa. I acknowledge the force of the respondent's submission in relation to s 501F(3) of the Act. Nevertheless, it seems to me that the statutory context does mean that the words "the visa" in s 501(2) of the Act (including the definitive article) should be interpreted as requiring, as a matter of objective fact, that the Minister have at least a general understanding of the nature and character of the visa that the Minister is asked to cancel. This does not mean that every minor error will result in invalidity. See the discussion by Debelle J in Adelaide Enfield v Minister for Transport & Urban Planning (1999) 73 SASR 22, 28-31. But it does mean that the Minister must understand the nature and consequence of the decision he is being asked to make. In my view that understanding is a jurisdictional fact. (d) On the information before the Minister he could not form a view as to the nature and consequence of the decision he was engaged in simply because the material he relied upon did not enable him to do so. And it was inconsistent in relation to a matter that was important to his decision making - namely whether the applicant held a permanent visa (with all that might imply) as against a five year visa. It was internally inconsistent in respect of a jurisdictional fact, namely whether the applicant held a permanent visa or a five year visa. (e) The decision of the Minister to cancel the visa was invalid. 17 It is unfortunate that the Minister must be the respondent to these proceedings. The error made in this case was not made by him but by his officers. 18 I am informed by counsel for the respondent that if I were to declare that the decision of the Minister was invalid the respondent would be released. In those circumstances it is unnecessary for me to consider any other orders that might be made, or the complications that might arise because of the phrase "reasonable suspicion" in s 189 of the Act. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

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