Tuli v Minister for Immigration & Multicultural Affairs

4 The applicant has been in a de facto marital relationship since about 1996. The applicant and his de facto wife have a daughter who was about eighteen months old at the time when the abovementioned decisions were made. 5 On 16 December 1996 a delegate of the respondent, acting under s 200 of the Act, signed a deportation order in respect of the applicant. The applicant sought review of that decision in the Administrative Appeals Tribunal. On 14 August 1998 the Tribunal set aside the respondent's decision and substituted a decision that the applicant not be deported. On 12 October 1998, by letter of that date, the respondent advised the applicant that he was considering cancelling his visa under s 501 of the Act and declaring him to be an excluded person under s 502. The respondent's letter invited submissions from the applicant. The applicant, and others on his behalf, lodged submissions seeking to persuade the respondent not to cancel the applicant's visa or to declare him to be an excluded person. On 24 November 1998 the respondent made the first two decisions referred to above. The effect of the decision under s 501 of the Act was to render the applicant liable for detention and deportation as an unlawful non-citizen. As I have mentioned, the effect of the decision under s 502 was to preclude review of the visa cancellation decision in the Administrative Appeals Tribunal. The applicant was then taken into immigration detention where he is still held.

The grounds of the application and the applicant's contentions 6 The applicant acknowledged that the two decisions made under s 501 of the Act (i.e. cancellation of his Special Category Visa and refusal of a bridging visa) are reviewable only under s 476 of that Act. However, he contended that the decisions under s 502 of the Act fall for review under the wider grounds contained in the ADJR Act, including provisions relating to natural justice and taking into account relevant considerations. In that regard, the applicant contended that neither of the decisions under s 502 was a "decision relating to a visa" within the meaning of s 475 of the Act. The applicant acknowledged that if those decisions were decisions relating to a visa then they fell for consideration under the more limited grounds of review listed in s 476 of the Act. 7 The applicant was represented by Mr Cameron Jackson, through the Legal Assistance Scheme of the New South Wales Bar Association. The Court records its appreciation of Mr Jackson's assistance to it and to the applicant. Mr Jackson submitted that, as a matter of construction, the respondent's decisions under s 502 should be held not to fall within the expression "a decision relating to a visa". The substance of the decisions to declare the applicant to be an excluded person was, so it was put, that they precluded review of the two decisions made under s 501. Alternatively, the decision to declare was a decision relating to a decision relating to a visa and was thus not a decision relating to a visa. He contended that where a decision is taken to preclude avenues of review of an earlier decision, otherwise available as of right, the legislature could not have intended to preclude what he described as "fundamental safeguards" ensuring that the applicant was accorded natural justice in relation to that decision. 8 Mr Jackson said that this submission was supported by a further proposition which he advanced. That proposition was that s 502 also made provision for the situation in which if the Minister, acting personally, intended to make a decision under s 200 of the Act (i.e. to order the deportation of a non-citizen to whom Division 9 of Part 2 of the Act applied) then he could, as part of that decision, include a certificate declaring the person to be an excluded person. In those circumstances, so Mr Jackson contended, the decision so to declare would not be a decision relating to a visa. The result was, so the applicant submitted, that a decision to declare under s 502 when made as part of a decision under s 200 would be reviewable under the more expansive provisions of the ADJR Act, but not when the Minister makes the same decision as part of a decision under s 501. [The respondent accepted that a decision under s 200 of the Act was not a judicially-reviewable decision within the meaning of s 475(1)(c) and pointed out that, by the operation of s 82(4), the visa of a person deported under s 200 ceases to be in effect when the holder leaves Australia because of a deportation order made under s 200. There was thus, so it was put by the respondent, no "decision" relating to the visa.] 9 In respect of the decisions to cancel the applicant's visa and to refuse him a bridging visa, Mr Jackson submitted that the respondent had based those decisions on a fact which did not exist: see s 476(1)(g) and (4)(b). The fact was said to be a statement, contained in the relevant minute submitted to the respondent, that "the Department is not aware of any recent good conduct that Mr Tuli may have performed in the community". The applicant argued that this was an error of fact, because the respondent's Department had on file two documents. The first was a report dated 11 November 1998 from the Probation & Parole Service of the Department of Corrective Services of the State of New South Wales, which referred to the applicant's sporting activities and his attempts to find employment. The second was a letter from his de facto wife's parents which was said to document a positive relationship with his wife and child. The applicant contended that none of those matters was alluded to anywhere within the record of decision. He argued that positive conduct towards one's de facto wife and conduct as a parent clearly constitutes good conduct within the community. Given that the object of enquiry was the applicant's character, the applicant submitted that this was a material error of fact, reviewable under s 476(1)(g). 10 In relation to the decisions made under s 502, and on the assumption that the wider grounds of review applied, the applicant contended that he had been denied natural justice. This was because he had not been informed that the respondent did not intend to treat the best interests of his daughter as a primary consideration and accord him an appropriate opportunity to respond: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. The applicant also submitted that the respondent had failed to take into account relevant considerations. The relevant considerations were said to be those aspects of the national interest which militated against the decision, namely: · the national interest in excluding the applicant from the right to apply for review in the Administrative Appeals Tribunal, such as the importance of maintaining procedural safeguards, and the impact of denial of such safeguards to permanent residents and consequent effect on related Australian citizens (such as the applicant's child and de facto spouse); and · the national interest involved in honouring Australia's international treaty commitments. One of those commitments was to give paramount consideration to the best interests of children, the other was Australia's treaty commitments and international obligations generally. 11 In the event that the decisions under s 502 could only be reviewed under the Act, the applicant submitted that the respondent had too narrowly construed the concept of "national interest" by failing to consider the issues on that topic, referred to immediately above, which failure amounted to an error of law.

The Legislative Framework 12 Section 475(1) provides that subject to s 475(2) decisions of the Immigration Review Tribunal, decisions of the Refugee Review Tribunal, and other decisions made under the Act, or the regulations, relating to visas are "judicially-reviewable decisions". Nothing in s 475(2) has a bearing on the present matter. Section 476(1)(g) provides that an application may be made for review by this Court of a judicially-reviewable decision on the ground that there was no evidence or other material to justify the making of that decision. However, s 476(4) relevantly provides: "(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) …; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." 13 Section 501 of the Act relevantly provides as follows: "501(1) The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if: (a) subsection (2) applies to the person; or (b) . . . (2) This subsection applies to a person if the Mninister: (a) having regard to: (i) the person's past criminal conduct; or (ii) the person's general conduct; is satisfied that the person is not of good character; or (b) . . . (3) The power under this section to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person." 14 Section 502 of the Act relevantly provides: "502(1) If: (a) the Minister, acting personally, intends to make a decision: (i) under section 200 because of circumstances specified in section 201; or (ii) under section 501; or (iii) . . . in relation to a person; and (b) the Minister decides that, because of the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person; the Minister may, as part of the decision, include a certificate declaring the person to be an excluded person. (2) A decision under subsection (1) must be taken by the Minister personally. (3) If the Minister makes a decision under subsection (1), the Minister must cause notice of the making of the decision to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the decision was made."

15 For the benefit of anyone reading these reasons who is not a lawyer, I think that it is important to explain the limited powers and duties which the Court has in this matter. The Court does not have power to consider any underlying merits or demerits of the matters which were before the respondent for decision. The Court's power is confined to adjudicating upon the purely legal challenges raised by the applicant. In short, the question is whether the respondent's decision was made in accordance with the law, not whether he made the right decision on the merits or demerits of the case. Whether the decisions under s 502 were decisions "relating to visas"

16 In my view, both of the decisions made by the respondent under s 502 were decisions "relating to visas" within the meaning of that expression in s 475(1)(c). They were thus "judicially-reviewable decisions". My reasons can be shortly stated. First, the power conferred on the respondent under s 502 is expressly stated as being exercisable "as part of the decision" - see s 502(1). There can scarcely be a closer relationship between something (in this case each of the decisions, respectively, to cancel and refuse a visa) and another thing (the inclusion of a certificate declaring the applicant to be an excluded person) which is a part of that first-mentioned thing. Secondly, the words "relating to visas" are extremely wide. To the extent that the decisions under s 501 to cancel or refuse the applicant's visa may be regarded separately from the decisions made under s 502 (as to which I need express no opinion), the latter were so closely connected in time and context to the former as, in my opinion, to be decisions "relating to visas".

17 I do not accept that part of Mr Jackson's argument which depends upon the reference to s 200 in s 502(1)(a)(i), which I have summarised above. I see no inconsistency or absurdity in the different consequences which might flow from the different exercises of power referred to in that sub-section. It is true that a decision under s 200 to order the deportation of a non-citizen need not be a decision about a visa. The respondent concedes that. [I think that the respondent took the position that no decision under s 200 would be judicially-reviewable, because no decision relating to a visa is necessary in such circumstances. That is not an issue which I have to decide.] For present purposes it is sufficient that such a decision need not be a decision about a visa. Accordingly if, as part of a decision under s 200, the Minister declared a person to be an excluded person, that latter decision would not necessarily be a decision relating to a visa. Mr G T Johnson, counsel for the respondent, fulfilled an undertaking given at the hearing by later forwarding to the Court some written submissions on the question whether a decision under s 200 is a judicially reviewable decision. According to his researches (for which I am grateful) the only case in which the matter has been considered was Towers v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, 16 February 1998). That was an application for urgent interim relief. By way of obiter dictum I expressed the view (at p 5) that a decision to deport a person did not appear to be a judicially reviewable decision. I still hold that view.

18 I do not think that there is the inconsistency which Mr Jackson claimed to exist. Mr Jackson's point was that, in this particular case, the Minister could have acted under s 200 by considering what Mr Jackson described as "essentially the same material". Had the Minister done so, then the applicant would have been entitled to natural justice and a right to judicial review under either the ADJR Act or s 39B of the Judiciary Act 1903 (Cth). Accordingly, the expression "decisions relating to a visa" in s 475 should be construed as not being applicable to a like decision made under s 502 on the grounds referred to in s 501. That submission does not sit easily with some of the observations of a Full Court of this Court in Minister for Immigration and Multicultural Affairs v Gunner (1998) 156 ALR 306. In that case (at 313) the Full Court pointed out that because of the different provisions of ss 201 and 501, the test was not the same and the criteria were different. The Minister in exercising the discretion conferred by s 501, was entitled to take into account matters which were not relevant to a decision under s 200 based on the criteria specified in s 201. It is true that, in the present case, the Minister appears to have based his decision on the same materials. However, in my view, that does not require the adoption of the construction of the phrase "decisions relating to visas" which the applicant urged upon the Court. It is simply a situation in which Parliament has given the Minister the choice of two different courses. The first course, under s 200 may be taken by the Minister or his delegate. In that situation there is the right to apply to the Administrative Appeals Tribunal for review unless the Minister, acting personally, makes that decision and as part of that decision decides to make a declaration under s 502. The second course involves the Minister acting personally under both s 501 and s 502. In any event, if there is such an inconsistency, in my opinion that would not require the plain language of s 475(1)(c) to be read down in the manner contended for. Where the circumstances are such that the decision is made under s 501 and, as part of that decision, the Minister decides to include a certificate under s 502, the latter decision must be a decision relating to a visa. Cases such as Jia Le Geng v Minister for Immigration and Multicultural Affairs (unreported Federal Court of Australia, French J, 1 July 1998, Judgment No 768 of 1998) and Gunner proceeded under that assumption, admittedly without any discussion on the point.

19 The result of that conclusion is that, by the operation of the provisions of Part 8 of the Act, and in particular s 485, the applicant is confined to the grounds of review set out in s 476.

20 The only such ground upon which the applicant relies is that the respondent's decision was said to involve an error of law, being an error involving an incorrect application of the law to the facts as found by him. By way of particulars the applicant refers to the Minister's failure to consider the two issues of national interest which I have set out above at paragraph 10.

21 I accept the respondent's submissions that the national interest as referred to in s 502 of the Act is essentially a matter to be determined by the Minister. A similar issue arose in Gunner, where at 314 the Court explained that the word "excluded" in s 502 was intended to signify "excluded from the right to apply to the AAT for review" rather than "excluded from Australia". It then said:

"When s 502(1)(b) speaks of the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person, the decision referred to is the decision of the kind referred to in s 502(1)(a)(i), s 502(1)(ii) or s 502(1)(a)(iii) - in the present case a decision under s 501 (which is referred to in s 502(1)(a)(ii)). The "circumstances" in the present case are thus the respondent's past criminal conduct: s 501(2)(a)(i). It is the seriousness of that conduct which has to be assessed in the national interest. Obviously enough, the national interest dictates that people who engage in sufficiently serious crime should not have the benefits of an Australian visa. The effect of s 502, when invoked, is to ensure that the minister is to have the final and only say on the question of whether the person in question should or should not be entitled to enter or be in Australia. While the word "excluded" signifies exclusion from merits review by the AAT, the effect is that, since the relevant decision under s 201 or s 501 has been made by the minister acting personally, the minister and no one else can make the decision as to what is in the national interest. Not only is the minister directly answerable to parliament for his or her decision, but parliament must in fact be informed of the decision: s 502(3)." 22 In my opinion, that passage is directly applicable to the present case. Parliament has decided that it is for the Minister to decide what is in the national interest, whether he includes some matters as being within it or excludes other matters as not falling within the national interest. The applicant's contention boils down to a contention that the respondent is obliged, when deciding where the national interest lies, to take into account what were described as relevant considerations and which I have set out (from paragraph 21 of the applicant's written outline of submissions) at paragraph 10 above. The applicant relied upon the decision of a Full Court of this Court in Chaudhary v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 84 at 87-88 and the cases there discussed. That case involved an applicant for a visa who satisfied the then relevant requirements, but who was refused that visa on the grounds that the present and future potential cost of maintaining and caring for his eldest child (a victim of cerebral palsy involving spastic quadriplegia and epilepsy) meant that it was not in the interests of the Australian community to grant him a visa. The decision-maker had taken into account only that economic factor when assessing the interests of the Australian community. The Full Court held that this was error of law because it was in Australia's best interests to be seen as a civilised, compassionate and advanced nation, equipped with advanced and available medical technology and willing to accept responsibilities as a leading country in the Pacific. Furthermore an assessment of where Australia's interests lay could not, so the Full Court held, ignore the negative impact in our region of being seen to put material costs so far ahead of human values. I think that it is reasonably clear, from a reading of the reports of Chaudhary both at first instance [Chaudhary v Minister for Immigration, Local Government and Ethnic Affairs (1993) 44 FCR 510] and on appeal that this ground was advanced for the first time on appeal and was put on the basis that the decision-maker had omitted from consideration matters which could not be overlooked in making a valid decision. That was the relevant error of law as identified: see 49 FCR at 87. In my view, Chaudhary is distinguishable from the present case. Section 501 is framed in terms which make the test the satisfaction of the respondent. As Burchett J explained (in like circumstances, but under the Australian Military Regulations) in Shand v Chief of the Army (1998) 51 ALD 278 at 282, this means that providing that the decision was open to be made upon the material, the making of it was for the decision-maker. See also Pat Tai Choi v Minister for Immigration and Multicultural Affairs (unreported, Lindgren J, Federal Court of Australia, 2 December 1998, Judgment No 1556 of 1998 at 8) and French J in Jia Le Geng v Minister for Immigration and Multicultural Affairs (unreported, French J, Federal Court of Australia, 1 July 1998, Judgment No 768 of 1998) at 36. As Burchett J pointed out in Shand (at 282) there would be reviewable error if the decision-maker acted on some personal opinion unconnected with the subject matter. I appreciate that s 502 does not repeat the words "is satisfied", which are found in s 501. But parliament has specified that the Minister's decision under s 502 is to be made "as part of" a decision under s.501. It seems highly unlikely that a subjective standard was to apply to one part of the overall decision and not to the rest of it. The thrust of what is contained in the passage which I have set out above from the Full Court's judgment in Gunner points also to the conclusion that it was for the respondent to be satisfied that it was in the national interest to include the declaration. In my view, there would have been no error of law on the respondent's part in failing to take into consideration the matters to which the applicant has referred, if in fact he had not done so. In the circumstances, it is not necessary to decide that factual question.

Whether the decisions made under s 501 (respectively to cancel and refuse a visa) involved reviewable error 23 The applicant contended that the respondent had based his decisions on a fact which did not exist - see s 476(1)(g) when read with s 476(4)(b). The fact was, so it was put, that the Minister was informed that the Department was not aware of any good conduct on the part of the applicant in the community, when the truth of the matter was that the Department was aware of such conduct. 24 There are two bases upon which I reject this ground. First it was based on an assumption that the report from the Parole Office (identified above) and the letter from the applicant's de facto wife's parents were not attached to the Departmental minute. That is not correct. Both documents are referred to in the middle of the penultimate page of the minute submitted to the respondent. Furthermore, I am satisfied from the evidence in the affidavit of Ms Stephanie Kavallaris, affirmed on 25 February 1999, that the two documents were before the Minister when he made his decisions. 25 My second, equally basic, reason for rejecting this ground is that even if the facts were as the applicant alleged, that circumstance would only satisfy one of the pre-conditions before the ground specified in s 476(1)(g) may be taken to have been made out. The applicant would still be faced with the task of establishing, in terms of that sub-paragraph, that there was no evidence or other material to justify the making of the decisions: Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 221; Pat Tai Choi at 9. There was clearly evidence or other material to justify making the decisions. The applicant's criminal record alone shows that.

Conclusion 26 For the foregoing reasons the application will be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr .

Counsel for the Applicant: Mr C Jackson [Mr Jackson was retained and provided his services through the Legal Assistance Scheme of the NSW Bar Association]

Solicitor for the Respondent: Australian Government Solicitor