White v Minister for Immigration & Multicultural Affairs

The Deportation Order 6 On 9 January 1998 a delegate of the Minister decided that Mr White should be deported from Australia pursuant to s 200 of the Migration Act 1958. The ground relied upon was that he was a non-citizen who had been a permanent resident of Australia for less than ten years when he committed offences for which he was sentenced to a term of imprisonment of or exceeding one year. Mr White appealed to the Administrative Appeals Tribunal and on 21 May 1998 the Tribunal set aside the deportation decision and remitted the matter to the Minister with a direction that Mr White not be deported.

Visa Cancellation and Excluded Person Declaration 7 It does not appear from the record what formal disposition was made by the Minister in relation to the Tribunal's decision. However on 13 August 1998 Mr Dan Crennan, the Director of the Character Section of the Department of Immigration and Multicultural Affairs wrote to Mr White stating that the Special Category Visa which had been granted to him on 31 January 1992 might be liable for cancellation under s 501 of the Migration Act. The letter said that the Minister had indicated that he proposed personally to examine whether there were grounds to cancel the visa under s 501 and to declare Mr White an excluded person under s 502 of the Act on character related grounds. It pointed to the provisions of ss 501 and 502 and said that matters to be taken into account by the Minister could include various of the criminal convictions, including the conviction of manslaughter which had been incurred by Mr White. The Minister invited his comment on those matters and the provision of any further information which he considered relevant. It was said the Minister would take any material provided by Mr White into account when he examined the case. 8 On 14 October 1998 a minute was sent to the Minister signed by the Assistant Secretary of the Department's Boarder Control Branch. The purpose of the minute was to seek the Minister's decision on: ". the possible cancellation of Mr Leslie Edward Milton Towers' Special Category Visa under section 501 of the Migration Act 1958 (the Act); and . if you decide to cancel Mr Tower's visa under section 501 of the Act, whether you will declare Mr Towers to be an excluded person under section 502 of the Act." The background to the minute was said to have been the Minister's previously indicated intention to personally consider the cancellation of Mr Towers' visa. The recommendation at the end of the minute was in the following terms: "RECOMMENDATION 8. That you note that a decision whether to: . cancel Mr Towers' visa under section 501 of the Act; and . declare Mr Towers to be an excluded person under section 502 of the Act is required by you and that your decisions should be indicated on the decision record provided." Under the heading "Minister's Action" at the end of the minute appeared the words "Paragraph 8 NOTED". This was signed by the Minister. 9 Accompanying the minute to the Minister was a document entitled "ISSUES FOR CONSIDERATION FOR POSSIBLE VISA CANCELLATION UNDER SECTION 501 OF THE MIGRATION ACT 1958". It advised the Minister that in order to cancel the visa he must first be satisfied that Mr White was a person who was not of good character under s 501 of the Act. As to s 501 it was said: "The Act contains a broad, stand alone power to refuse to grant a visa, or cancel a visa, on the grounds that the visa applicant or the visa holder is a person who is not of good character." 10 After setting out the terms of the section the paper went on: "A finding as to whether Mr Towers is not of good character appears to involve one aspect of section 501: . whether a number of criminal convictions make him a person not of good character on the grounds of his past criminal conduct (subsection 501(2)(a)(i)). If you find that Mr Towers is a person who is not of good character on the ground detailed above, you then need to consider whether, notwithstanding that finding, there are factors that warrant not cancelling his visa." 11 The Issues Paper set out Mr White's criminal history and then provided advice on the question of good character. The Minister was informed that he would need to consider any relevant matters that existed at the time of the offences and whether Mr White had engaged in any recent good conduct. His substantial criminal history was said to indicate a contempt and disregard for Australian law and law enforcement officials and the serious nature of a number of the offences. The Paper said: "The recent convictions in 1994 and 1997, specifically the acts resulting in death, grievous bodily harm and bodily harm, and Mr Towers' high degree of recidivism would be of considerable concern to the Australian community." 12 Reference was made to a finding of the Tribunal that Mr White was making a contribution to the community by the performance of voluntary work for a religious organisation. The paper referred to his claims that he was actively searching for employment, that he no longer consumed alcohol and that he had successfully completed a fork lift driving course. It also noted that he was channelling his energies into a number of recreational pursuits such as cycling, swimming, weight lifting and playing chess. Nevertheless the paper observed that it was open to the Minister to find, based on the information set out, that Mr White was not of good character under s 501(2)(a)(i) of the Act. 13 The discussion in the paper then turned to the question of discretion pointing out that if the Minister were satisfied that Mr White was not of good character for the purposes of s 501 he must consider whether to exercise his discretion to not cancel his visa despite finding him to be not of good character. The Minister's attention was directed to the extent of Mr White's ties to the Australian community and the fact that he had lived, socialised and worked in that community for over ten years. It was pointed out that he had close relatives living in Australia and was sharing accommodation with his brother. He also had a number of relatives residing in New Zealand. However he did not have any business links with the Australian community and was unemployed. The safety of the Australian community was identified as a primary consideration and while referring to the lifestyle changes claimed by Mr White, the paper said: "However, Mr Towers' criminal history in Australia spans over a decade. He has been involved in criminal conduct that has had severe repercussions for other members of the community. While many of Mr Towers' convictions were relatively minor, resulting in only fines or community service, his lengthy history of criminal conduct demonstrates a high level of recidivism and a general disregard for the safety and wellbeing of members of the Australian community." 14 The Issues Paper then turned to the possibility of a declaration being made under s 502. The Minister was advised that in order to issue a certificate under s 502 he must decide that because of the seriousness of the circumstances giving rise to his decision to cancel the visa, it was in the national interest to make the declaration. In considering that matter, it was suggested that he might have regard to: ". the serious nature of Mr Towers' criminal offences, his disregard for Australian law and any possible repercussions that may be experienced by the Australian community if Mr Towers was to re-offend; and . that Mr Towers may seek AAT review and further delay his departure from Australia." 15 The Minister was then asked to indicate his decisions. Under the heading "MINISTER'S DECISION" he agreed with the following propositions: "1. Mr Towers is not of good character under s 501. 2. Mr Towers' visa should be cancelled 3. A section 502 certificate should be issued." The Decision section of the Issues Paper was signed by the Minister and dated 14 October 1998.

Commencement of these Proceedings 16 On 29 October 1998 Mr White filed an application under Part 8 of the Migration Act to review the decisions, including the decision to deport him and the decision to cancel his visa. The application as filed was handwritten and obviously prepared without the benefit of legal advice. A revised typed version sought review of the Minister's decision to cancel the visa and to declare Mr White an excluded person under s 502. The stated grounds were that the decision was induced or affected by fraud or by actual bias and that there was no evidence or other material to justify the making of the decision. 17 The matter came on for directions on 18 November 1998 and the Minister was directed to provide the Court and the applicant with a copy of the submission before him in relation to the decisions the subject of the applications. That is the Issues Paper which has already been summarised in these reasons. Mr White was at that time not legally represented and the Court indicated that it would communicate with the West Australian Bar Association about the possibility of legal assistance for him. In the event, legal assistance was forthcoming through the good offices of the Association. Mr White was represented on a pro bono basis by Mr G. Donaldson when the matter came on for hearing. An amended application was filed.

The Grounds of Review 18 By the amended application orders were sought quashing the decisions of the Minister to cancel Mr White's visa pursuant to s 501 and to issue a certificate declaring him to be an excluded person within the meaning of s 502 of the Migration Act. There were a number of grounds of the application which proceeded upon the basis that s 476 of the Migration Act was in various parts invalid as contrary to Chapter III of the Constitution. These matters were not pressed in light of the decision of the High Court in Abebe v The Commonwealth (1999) HCA 14. Four of the five grounds upon which orders relating to the s 502 decision were sought asserted error of law and the fifth, improper exercise of the Minister's power. The errors of law alleged were that: (a) The Minister had purported to have regard to the seriousness of the circumstances giving rise to the decision under s 501 rather than, as required by law, having regard to the seriousness of the circumstances giving rise to the making of the decision under that section. (ab) The Minister wrongly construed s 501 as requiring him to have regard to the likelihood of future criminal conduct in making a decision based on s 501(2)(a)(i). (b) The Minister did not have regard to the national interest in making a decision under s 502 of the Migration Act but rather in making the decision under s 501 of the Migration Act. (c) The Minister had regard to future possible conduct of the applicant when s 502 requires that regard be had only to the applicant's past criminal conduct. 19 The claim of improper exercise of power was based upon the proposition that the purpose for which the power under s 502 is conferred is to exclude from review by the Administrative Appeals Tribunal under s 500 of the Act decisions of the Minister made under s 501(1)(b) and not decisions made under s 501(1)(a). 20 The grounds relating to s 501 asserted error of law in that the Minister did not have jurisdiction to make the decision within the meaning of s 476(1)(b) of the Migration Act, was not authorised within the meaning of s 476(1)(c) of the Migration Act and exercised the power improperly within the meaning of s 476(1)(d) in that it was an exercise of power for a purpose other than a purpose for which it was conferred.

Statutory Framework 21 The original deportation order made in respect of Mr White which was the subject of review proceedings in the Administrative Appeals Tribunal was made under s 200 which provides: "200. The Minister may order the deportation of a non-citizen to whom this Division applies." The application of Division 9 to non-citizens is covered, inter alia, by s 201 which provides, relevantly for present purposes, that s 200 applies to a non-citizen who has been in Australia as a permanent resident for a period of less than ten years and who has been convicted in Australia of an offence for which he has been sentenced to imprisonment for a period of not less than one year. 22 The provisions under which the Minister made the decisions under review in the present case were ss 501 and 502 of the Migration Act. The relevant parts of those provisions are 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) the Minister is satisfied that, if the person were allowed to enter or to remain in Australia, the person would: (i) be likely to engage in criminal conduct in Australia; . . . (2) This subsection applies to a person if the Minister: (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. . . . (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." 23 Section 502 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) to refuse to grant a protection visa, or to cancel a protection visa, relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2); 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." 24 Section 501 is not the only provision of the Act which authorises cancellation of visas. Section 116 sets out a number of grounds upon which a visa may be cancelled by the Minister. Other provisions dealing with particular cases in which visas may be cancelled are s 109 relating to the provision of incorrect information, s 128 relating to visa holders outside Australia, s 134 which deals with the cancellation of business class visas and s 140 which concerns the consequential cancellation of other visas. Section 118 provides that the powers conferred by these provisions and ss 116 and 501 "are not limited or otherwise affected by each other".

The Minister's Decision Under Section 501 25 The Minister's decision under s 501 was expressed as an agreement with the outcomes suggested in the Departmental Issues Paper. 26 It was formally submitted by counsel for Mr White that the Minister was not empowered to act under ss 501 and 502 where a decision of the Administrative Appeals Tribunal had set aside a deportation order made against an applicant on the same grounds as the proposed cancellation and certificate of exclusion. I rejected similar submissions in Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 110-111. The Full Court has since taken a similar view in Minister for Immigration and Multicultural Affairs v Gunner (1998) 156 ALR 306. As counsel recognised I am bound by that decision to reject his submission. 27 Nevertheless counsel sought to make a barely distinguishable but perhaps not absolutely identical point on the basis that it was not covered by the decision of the Full Court in Gunner. He contended that as a matter of the construction of s 501 the power to cancel a visa under that section is not able to be exercised where the Minister has previously made a decision under s 200 and the s 200 decision has been reversed by the Administrative Appeals Tribunal. Fundamentally, it was said, ss 501 and 200 serve an identical purpose. That is, put crudely, the exclusion from Australia of persons whom the Minister does not wish to remain in Australia. The provisions of s 501(3) were invoked. The power to cancel a visa under s 501 is additional to the other powers conferred by the Act to cancel or refuse a visa. That proposition is confirmed by s 118 which, significantly according to the applicant's counsel, does not refer to s 200. As a matter of construction therefore it was submitted that the power under s 501 to cancel a visa is not to be regarded as additional to the power to deport under s 200. These are two "correlative and identical powers" and it would be "strange indeed if the two powers were able to be exercised cumulatively". If that proposition is correct it would mean that if the Minister proceeded by way of s 200 and his decision were reversed by the Tribunal, the Minister would thereafter be precluded from exercising the power under s 501 unless circumstances changed giving rise to an exercise of the power de novo. 28 It is not surprising that s 118 does not refer to s 200. Section 118 is designed to exclude the application of the expressio unius rule as between the different statutory bases for the cancellation of visas. The power to deport under s 200 is qualitatively different from the power to cancel a visa. The cancellation of a visa does not automatically lead to deportation of the former visa holder. That person could leave Australia voluntarily in which case no deportation order would be necessary. Or the cancellation of one visa might lead to an application for a visa of a different class. There is nothing about the power to cancel a visa conferred by s 501 that prevents it from being exercised when the Administrative Appeals Tribunal has previously reversed a decision to deport under s 200. 29 Although this argument was not raised in the Full Court in Gunner, it was raised and rejected by Sackville J at first instance - see Gunner v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 507 at 523-524 where his Honour said: "In my view, this submission attempts to derive an unwarranted negative inference from the positive terms of s 501(3). …section 501(3) addresses only the relationship between the power in s 501 and other powers conferred by the Act to cancel visas. It does not affect the relationship between s 501 and the deportation power." 30 Then it was said that in making a decision based upon the ground in s 501(2)(a)(i) the Minister can have regard only to the "past criminal conduct" of the applicant. The relevant power is the power to refuse or cancel a visa and that power is conferred on the Minister by s 501(1). It is a power enlivened when one of a number of conditions is fulfilled. One of those conditions is satisfied when the Minister "having regard to…the person's past criminal conduct…is satisfied that the person is not of good character". It was submitted that the Minister in proceeding under this limb of the section is unable to have regard to a prediction of future criminal conduct and that it would be an error of law for him to do so. This was said to be clear from the provisions of s 501(1)(b)(i) and a clear case of the application of the expressio unius principle. Reference was made to Bass v Permanent Trustee (1999) 73 ALJR 522 at 528. But the requirement that the Minister have regard to past criminal conduct is, as a matter of ordinary English construction, not exhaustive of the factors he must consider in assessing whether or not a person is of good character. The separate reference to "the person's general conduct" in s 501(2)(a)(ii) simply means that the Minister can be satisfied that a person is not of good character and thus empowered to refuse or cancel a visa in a case where there has been no criminal conduct. 31 The term "good character" in s 501 refers to the enduring moral qualities of a person - Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84. As the Court said in Minister for Immigration and Ethnic Affairs v Baker (1997) 153 ALR 463 at 469: "It is not conceivable that parliament intended anything so unreasonable as a conclusion whether a person is now not of good character, based exclusively on his past criminal conduct, without regard to any recent good conduct, whether or not falling within the description of "general conduct". So the words "having regard to" and the disjunctive "or" must not be given the effect of requiring a printed decision to be made on the basis of criminal conduct considered in isolation." 32 To those observations I add the further comment that character is enduring and formed by an accumulation of acts or omissions. It necessarily and implicitly involves an assessment of likely future behaviour. So in reaching his state of satisfaction under s 501(2)(a)(i) the Minister may form a compendious picture based upon past criminal and general conduct and the likelihood of particular future behaviours derived therefrom. A fortiori, in exercising the discretion to refuse or cancel a visa in such a case, the Minister would have regard to the want of good character and the risk of future adverse behaviour. As I said, in effect, in Powell v Administrative Appeals Tribunal (1999) 161 ALR 15, the exercise of the discretion involves, inter alia, a weighing up of the nature of the character deficiencies and their implications for the public interest in the future.

The Minister's Decision Under Section 502 33 The first ground of review in relation to the s 502 decision advanced the proposition that in making that decision the Minister had regard to the seriousness of the circumstances giving rise to his decision under s 501 rather than the seriousness of the circumstances giving rise to the making of the decision under s 501. On the face of it this ground seems to present a distinction without a difference. The ground picked up the language of the Issues Paper which advised the Minister that in order to issue a certificate under s 502 he "must decide that because of the seriousness of the circumstances giving rise to your decision to cancel Mr Towers' visa it is in the national interest to do so". The submission in support of this ground identified as the essential question the meaning of the words "the making of" in s 502(1)(b). The submission did not really address that question. It culminated, however, in the proposition that the Minister, in exercising his power under s 502 to declare Mr White an excluded person, was limited to considering the past criminal conduct which grounded his decision to cancel the visa under s 501. 34 It was submitted that when the Minister has made a decision to cancel a visa under s 501 the circumstances giving rise to the making of that decision, which he must consider in exercising his power under s 502, are the circumstances to which he had regard in s 501(2)(a). In this case the relevant circumstances were said to be Mr White's "past criminal conduct". The Minister, it was contended, is required by s 502 to have regard to the seriousness of that conduct and then decide whether it is in the national interest to make the declaration. The Act, it was said, "does not empower the Minister in making the section 502 decision to have regard to the likelihood of the applicant reoffending or the "repercussion" of this….". 35 This submission is immediately undermined by the conclusion I have reached about s 501 and the prospective as well as retrospective judgment that it involves both in the assessment of the visa seeker's or holder's character and in the exercise of the discretion to refuse or cancel the visa. The circumstances whose seriousness must be considered are those "giving rise to the making of [the] decision". They are not limited to the circumstances attending the commission of past criminal conduct to which the Minister is required to have regard. This seemed to be the point addressed by ground 1(ab) of the grounds of review which was added by leave at the hearing. 36 Under ground 1(b) it was contended that the decision involved an error of law in that the Minister did not have regard to the national interest in acting under s 502 but rather in making the antecedent decision under s 501 of the Migration Act. The competence of this ground was challenged by counsel for the Minister as it was, upon proper analysis, a contention that there had been an improper exercise of power within the meaning of s 476(1)(d) because of the alleged taking into account of an irrelevant consideration. Such a ground of review it was said is not a permitted ground of review being specifically excluded by s 476(3)(d). There is plainly room for debate about the overlap between error of law and improper exercise of power as grounds for review. And there may be cases in which the reference to irrelevant considerations or failure to take into account relevant considerations may be based upon an error of law in the sense that that term is used in s 476(1)(e), namely "an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision". In the present case the ground fails on its merits in any event. The Issues Paper submitted to the Minister expressly advised him that in order to issue a certificate under s 502 he was required to decide that because of the seriousness of the circumstances giving rise to the decision to cancel the visa "it is in the national interest to do so". This ground does not succeed. 37 Ground 1(c) raised again the proposition that the Minister had regard to future possible conduct of Mr White when s 502 of the Migration Act required that regard be had only to his past criminal conduct. For the reasons I have already outlined this submission cannot succeed and this ground also fails. 38 In support of ground 1(d) the further submission was made that the Issues Paper suggested that in considering his decision under s 502 the Minister take into account that Mr White "may seek AAT review and further delay his departure from Australia". It was submitted that as a general matter it is difficult to understand how denial of Administrative Appeals Tribunal review could ever be in the national interest. As to that it may be observed that the purpose of a declaration under s 502 is to attract the exclusion in s 500 of a review of the s 501 decision by the Administrative Appeals Tribunal. There appears to be no other immediate statutory purpose, albeit the further objective no doubt is the expeditious removal of the person voluntarily or by deportation from Australia. This ultimate objective was covered by the expression of concern about the possibility that Mr White might further delay his departure from Australia by resorting to further Administrative Appeals Tribunal review. There is no basis for the challenge to the Minister's decision under s 502 arising out of the fact that the decision was made to exclude Administrative Appeals Tribunal review of the decision under s 501. That is on the assumption that the Minister in pursuing that purpose does so having regard to the seriousness of the circumstances giving rise to the making of the decision under s 501 and the national interest. The national interest in this setting does not stand independently of the seriousness of the circumstances which have given rise to the cancellation decision.

Conclusion 39 For the above reasons no ground has been made out for vitiating the Minister's decisions under ss 501 or 502 of the Act and the application will 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 French.

Counsel for the Respondent: Mr C.J.L. Pullin QC and Mr P. Macliver

Solicitor for the Respondent: Australian Government Solicitor