Truong v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The question in this case is whether there are any errors of process in the way in which Mr Truong's visa was cancelled. The original decision to that effect was made as long ago as 31 January 2005 by a delegate of the Minister for Immigration and Citizenship. His visa was cancelled because the delegate believed Mr Truong did not pass the character test and that it was appropriate for his visa to be cancelled. The visa held by Mr Truong was known as a Category K4011 (Refugee Program - Vietnamese) visa. The apparent power of the Minister's delegate to cancel that visa sprang from s 501(2) of the Migration Act 1958 (Cth) which permitted such a cancellation where the delegate reasonably suspected a visa holder did not pass the character test and the visa holder thereafter failed to satisfy the delegate to the contrary. 2 The delegate's suspicions were aroused because of Mr Truong's substantial criminal record. That criminal record commenced modestly on 1 November 1989 with the offence of driving whilst unregistered, exceeding the speed limit, failing to produce a licence and furnishing a false name. It finished 13 separate offences later on 18 August 2005 with a sentence of 2 years imprisonment for the supply of a prohibited drug. Along the way there were a number of drug offences which resulted, at worst, in some minor sentences of imprisonment or fines, an armed robbery resulting in a 3 year sentence, an assault with an act of indecency resulting in a 6 month sentence, a number of other assaults and some other minor infractions. A person fails the character test if they have a substantial criminal record and that includes having been sentenced to a period of imprisonment in excess of 12 months: s 501(6)(a) and (7)(c). Mr Truong plainly failed the test. 3 The fact that Mr Truong failed the character test did not require the delegate to cancel the visa but instead only empowered him to do so. The capacity of the character test to operate in ways which are heart-rending is well-known. The power exercised by the Minister's delegates is an unenviable one requiring, inter alia, the weighing-up of the general interests of the community in being protected from dangerous criminals alongside other imponderables such as the breaking-up of families where the visa holder has formed a relationship or raised children, the harshness attending the deportation of persons who have held visas since they were children and who, sometimes, did not even realise they were not Australian citizens, together with a whole gamut of other circumstances such as rehabilitation and, within bounds given the non-criminal nature of the administrative process, general deterrence. 4 In this case, Mr Truong presented the delegate with evidence of a drug problem coupled with a cure and the embrace of a new way of life. The delegate was, however, not persuaded and the visa was cancelled in any event. The delegate's decision was open to review in the Administrative Appeals Tribunal and that course was pursued but, on 5 May 2005, the Tribunal reached the same conclusion. At that juncture Mr Truong experienced the legal equivalent of a lucky break. The precise power of cancellation conferred on the Minister (and his delegates) by the wording of s 501(2) is a power to cancel a visa which "has been granted to a person" (my emphasis). A series of events culminating in the decision of the Full Court of this Court in Sales v Minister for Immigration and Citizenship (2008) 171 FCR 56 resulted in it being discovered that where a visa holder held a visa which had not "been granted" the power of cancellation did not arise. The visa in Sales was one which had never been "granted" to him but instead was deemed to have been held by him pursuant to some regulations. That being so the Full Court concluded that the Minister had no power to cancel such a visa and quashed his delegate's decision to do so. On 19 September 2008 there commenced items 5, 6(3) and 7 of Schedule 4 to the Migration Legislation Amendment Act (No 1) 2008 (Cth) which included within it a provision deeming decisions by the Minister to cancel a visa pursuant to s 501 to have been as valid as it would have been if the visa in question had been "granted". The legislation did not, however, refer to decisions of the Tribunal. This led Rares J to conclude in Martinez v Minister for Immigration and Citizenship (2009) 177 FCR 337 at 348-350 [29]-[32], [36] that a decision of the Tribunal affirming an earlier decision to cancel a visa was not rescued by the remedial legislation. 5 That, of course, was Mr Truong's position. On 13 October 2009 the Minister accepted as much and consented to orders in this Court setting aside the Tribunal's decision on the basis that it was afflicted by the difficulty identified by Rares J. That conclusion, however, merely resulted in a fresh hearing before the Tribunal which took place on 10 June 2010 and which resulted in the Tribunal affirming, on 2 July 2010, the original decision made by the delegate on 31 January 2005, that decision's validity now supported by the remedial legislation. 6 Mr Truong attended the hearing in this Court accompanied by a Vietnamese interpreter and stressed, naturally enough, that he was not a lawyer. He drew to my attention his desire to remain in this country, emphasised his rehabilitation from his former drug problem and pointed to the fact that arrangements had been made for his integration back into the community. I am prepared to assume those matters in Mr Truong's favour. The question at hand, however, is the disposition of the appeal to this Court and it takes the form of an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). Unfortunately, this Court's jurisdiction does not extend to the hearing of such appeals because that jurisdiction has been explicitly removed by s 476A(1) of the Migration Act 1958. The Court retains, nevertheless, a jurisdiction to review a decision made by the Tribunal to affirm a decision by a delegate to cancel a visa on character grounds under s 476A(1). However, that review is in the nature of judicial review and is limited by the necessity to demonstrate jurisdictional error. On 10 August 2010 I directed Mr Truong to file an application for judicial review but he did not comply with that direction by the time of the hearing on Thursday 28 October 2010 and did not seek to pursue such an application in any form before me. 7 It must follow, as a matter of formality, that Mr Truong's application is incompetent and must be dismissed. The Minister did not oppose my considering the matter on the basis that Mr Truong had applied for judicial review which is a very proper position for the Minister to have adopted. I do not propose, however, to do so as Mr Truong did not, in fact, so apply despite being directed to do so on 10 August 2010. However, for completeness I should note that even if he had applied no different result would have obtained. This is for two reasons. First, any such application would have been out of time and would therefore have required an extension under s 477A of the Migration Act 1958. That in turn would have required, at least, some explanation for why the application (which was not made) was made late which explanation was not forthcoming. Secondly, assuming that problem could have been surmounted it is apparent from the notice of appeal filed on his behalf that the ground which Mr Truong would have sought to have agitated is this: the remedial legislation which deems valid a decision to cancel a visa on character grounds does not operate to authorise the Minister or his delegates to cancel a visa because the text of s 501(2) remains conditioned on the existence of a visa which has been granted. The provision in question is item 7 of Schedule 4 to the Migration Legislation Amendment Act (No 1) 2008 which provides that a decision of the Minister under s 501 "is as valid, and is taken always to have been as valid, as it would have been if the…visa…had been granted". The argument is that this has no effect on the operation of s 501(2) which still only confers power in respect of visas which have been granted. However, as Stone J explained in Martinez v Minister for Immigration and Citizenship (No 2) (2010) 268 ALR 39 at 44-46 [20]-[28] item 7 operates to provide authority to the Minister under s 501(2) to cancel visas of the kind held by Mr Truong. I do not doubt, with respect, her Honour's conclusion which was, as her Honour noted, consistent with some obiter remarks made by Moore J and myself in Bainbridge v Minister for Immigration and Citizenship (2010) 181 FCR 569 at [25] about the operation of item 7. 8 In those circumstances, even assuming I would have had power to treat Mr Truong as making an application which he did not in fact make, I would have dismissed that application. In any event, the appropriate order is that the application be dismissed as incompetent and that Mr Truong pay the Minister's costs. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.