Wu v Minister for Immigration and Border Protection

1. The appeal is dismissed.
2. The Registrar is to make available to the appellant by email a read-only copy of the transcript of today's proceeding.
3. The parties are to bear their own costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

CHARLESWORTH J: 1 Orders were made on 15 September 2017 dismissing this matter with costs. Oral reasons were given at the time that the orders were made. This is a written record of the reasons given. 2 This is an appeal from a decision of the Administrative Appeals Tribunal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The appellant, Mr Wu, is a citizen of China. He has resided in Australia since 2004. Until February last year he held a visa granted under the Migration Act 1958 (Cth), being a Return (Residence) (Class BB), Subclass 155-Five Year Resident Return Visa. 3 A delegate of the Minister for Immigration and Border Protection cancelled the visa on character grounds pursuant to s 501(3A) of the Act. Another delegate of the Minister refused to exercise a power under s 501CA(4) of the Act to revoke the cancellation decision. The Tribunal affirmed that decision in the exercise of its review powers conferred under s 501BA of the Act on 2 February 2017. It is the Tribunal's decision that forms the subject matter of this appeal. 4 Although the action is described in s 44 of the AAT Act as an appeal, it is more accurately described as a statutory appeal that invokes the original jurisdiction of the Court. Such an appeal lies from a decision of the Tribunal only in respect of a question of law. The Court may make such orders as it considers appropriate by reason of its decision on the appeal under s 44(4) of the AAT Act. The orders may include an order that the Tribunal set aside the decision and that the matter be remitted to the Tribunal to be decided again, either with or without the hearing of further evidence by the Tribunal. 5 Section 501(3A) of the Act relevantly provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that: (1) the person does not pass the character test because of the operation of certain provisions of subs (6) (see s 501(3A)(a)); and (2) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory (see s 501(3A)(b)). 6 It is common ground that the appellant did not pass the character test because he had been sentenced to imprisonment for a term of 19 months in respect of an offence committed on 1 September 2015 and that he was, at the time of the cancellation of his visa, serving that sentence of imprisonment. 7 Section 501CA of the Act applies if the Minister (or his delegate) makes a decision to cancel a person's visa under s 501(3A). Subsection 501CA(4) is in the following terms: (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. 8 In exercising the cancellation power conferred under s 501(3A) and the revocation power conferred under s 501CA(4) of the Act, the Minister's delegate is obliged to comply with any direction issued by the Minister under s 499 of the Act. The applicable direction in this case was Direction 65 titled "Visa Refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA" issued on 22 December 2014. The Tribunal was also obliged to comply with the requirements of Direction 65. 9 The notice of appeal identifies the question of law for determination in the following terms: Whether a decision not to revoke a decision of the Minister can be made by a delegate of the Minister, or must be made by the Minister personally. 10 There are then two grounds relied upon. The second of those grounds specifies in more detail the error of law said to have been made by the Tribunal in the following terms: The Administrative Appeals Tribunal failed to take into consideration section 501CA(4) which states 'the power under subsection (3) may only be exercised by the Minister Personally', whereas the Minister's decision states that "after careful consideration of the representations you made, the decision-maker (who is a delegate of the Minister) decided, under s 501CA(4) of the Migration Act, not to revoke the original decision. (original emphasis) 11 Counsel for the Minister contends that this is not a proper formulation of a question of law for the purposes of s 44 of the AAT Act. The question is, the Minister submits, a thinly disguised attempt to attract jurisdiction under the garb of a question of law and that the jurisdiction of this Court under s 44(1) is not properly invoked. 12 It is difficult to conceive of the question identified in the notice of appeal as being anything other than a question of law. The question of whether the person who made the decision subject to the Tribunal's powers of review had the power to make the decision is a question of statutory construction. It is neither hypothetical in the present case nor too broadly stated. 13 However, the ground relied upon by the appellant should nonetheless be rejected as without merit. The Minister has the power to delegate to a person any of his powers under the Act pursuant to the delegation power in s 496 and there is no express condition in s 501CA of the Act to the effect contended for in this ground. In that regard, the power to revoke a cancellation decision made under s 501(3A) differs from the power to revoke a cancellation decision made under s 501(3). The latter power is indeed one that may only be exercised by the Minister personally as provided for in s 501C(4) and (5). 14 Moreover, the provision that confers power on the Tribunal to review the decision in question expressly contemplates that the power to refuse to revoke the cancellation decision in the present case is one that may be exercised by a delegate of the Minister: see s 501BA of the Act. 15 There is a further ground of appeal. It is expressed as follows: The Administrative Appeals Tribunal erred in applying Ministerial Direction 65 in that the Tribunal did not place sufficient weight on the Applicant's submissions in relation to the extent of impediments if the decision to cancel the Applicant's visa was not revoked, in particular in relation to: • the effect the Applicant's deportation would have on the Applicant's mother, Ms Hu; • the effect the Applicant's deportation would have on the Applicant's sister, Ms Wu; • the impediment the Applicant would have in re-establishing himself in the community in China. 16 This ground bears no relation to the question of law sought to be determined on the appeal, nor does it, on its terms, assert a separate question of law in its own right. The ascription of weight to be afforded to countervailing factors that bear on the Tribunal's decision is a matter for the Tribunal, provided that the Tribunal does not act unreasonably in the sense described by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. This ground of appeal does not particularise an error of law of that particular kind, nor is any such error apparent on a fair reading of the Tribunal's reasons. This ground should accordingly be rejected. 17 In his oral submissions in support of the grounds of appeal, the appellant contended that the Tribunal did not consider his background, the Tribunal was negligent, and that the Tribunal did not make a fair character assessment of him. He also made generalised assertions to the effect that the Tribunal did not comply with the requirements of the law in affirming the delegate's decision. I do not consider the oral submissions made in support of the grounds of appeal to assist the appellant. 18 That ordinarily would be sufficient to justify an order dismissing this matter. Counsel for the Minister has, however, raised an issue for consideration concerning an error said to have affected the Tribunal's decision that has been identified by the Minister himself and, quite properly, brought to the Court's attention notwithstanding that the error is not identified in the appellant's notice of appeal. By reference to that asserted error, the Minister seeks orders that the appellant be permitted to amend the notice of appeal so as to introduce the additional ground, that the additional ground be upheld, and that the appeal be allowed on that limited basis. 19 The short minutes of order provided by the Minister are intended to achieve that end. A note to the minute states: The Administrative Appeals Tribunal committed an error of law in that it misconstrued s 501CA(4) of the Migration Act 1958 (Cth). In particular, the proper construction of s 501CA(4) does not involve the exercise of a discretion to revoke per se. Rather, the structure of the provision is such that where the Minister is satisfied that one or other of the two conditions identified by s 501CA(4)(b)(i) (the character test) or s 501CA(4)(b)(ii) (another reason why the original decision should be revoked) is met, the Minister is required to revoke the decision. So understood, the permissive 'may' in s 501CA(4) is to be construed as 'must' if the necessary state of satisfaction is reached: Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337; [2016] FCA 1166 at [35] and [38] (North ACJ). To that end, there is no discretion to exercise, but rather a power. 20 The contention that the Tribunal misunderstood the nature of its statutory task is said to find support in [21] and [141] of the Tribunal's reasons. In its opening words to [21] the Tribunal says: The relevant principles against which we are to approach the exercise of our discretion in this matter are that: The Tribunal then sets out the principles to which it is to have regard, those principles having been derived from Direction 65. Reference is also made to [141], which states: We are to decide if there is any reason why the decision to cancel Mr Wu's visa should be revoked, in the exercise of our discretion, exercised in accordance with the Direction. 21 It is convenient to explain the import of the Minister's contention by extracting the relevant portion of the Minister's written submissions dealing with that topic: 22. In reaching its decision, the Tribunal referred to the terms of s 501CA(4) and referred to the statutory exercise in which it was engaged as one involving a 'discretion': see [21] and [141]. The reference at [141] referred to the exercise of a 'discretion … in accordance with the Direction'. The 'direction' referred to is 'Ministerial Direction No 65' (Direction) made on 22 December 2014 under s 499 of the Act. Relevantly, the Direction refers to the power under s 501CA(4) as one involving the exercise of a 'discretion'. 23. It is now accepted that the proper construction of s 501CA(4) does not involve the exercise of a discretion to revoke per se. Rather, the structure of the provision is such that where the Minister is satisfied that one or other of the 2 conditions identified by s 501CA(4)(b)(i) (the character test) or s 501CA(4)(b)(ii) (another reason why the original should be revoked) is met, the Minister is required to revoke the decision. So understood, the permissive 'may' in s 501CA(4) is to be construed as 'must' if the necessary state of satisfaction is reached: Gaspar v Minister for Immigration and Border Protection. 24. The Tribunal's decision therefore manifests an error of law in that it misconstrued the statutory provision which it applied. So much is clear at [21] and [141]. Misconstruing the statute is an error of law. (original emphasis, footnotes omitted) 22 On the basis of the asserted error of law, the Minister seeks orders that the matter be remitted to be determined according to law, albeit based only on the material leading to the decision dated 2 February 2017 in action 2016/5314, being the action in which the Tribunal made the decision now subject to this appeal. It is submitted that although the error is in the nature of a "highly technical mistake", the Tribunal should be seen to correctly appreciate the importance of carrying out its task according to the proper construction of the provision in question. That is consistent with what Gaudron J said in Corporation of the City of Enfield v Development Assessment Commission & Anor (2000) 199 CLR 135 at [56]: Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with laws which govern their exercise. The rule of law requires no less. 23 As the Minister correctly submitted, the authorities establish that there is no residual discretion to refuse to revoke a decision to cancel a visa if either one of the two alternative criteria set out in s 501CA(4)(b) of the Act is satisfied. However, the Tribunal's reasons, particularly [141], are to be read in the context of the Tribunal's reasons as a whole and against the circumstance that s 501CA(4)(b)(ii) of the Act requires the formation of a state of satisfaction as to whether there is another reason why the original decision should be revoked. That is a criterion that requires the formation of a state of satisfaction that must necessarily be founded on multiple and often countervailing circumstances, as Direction 65 itself indicates. The task involves an evaluative judgment. It involves considerations in respect of which reasonable minds may differ. That task is discretionary in that broad sense of the word. 24 Whilst Direction 65 is expressed in terms that appear (wrongly) to recognise the existence of what I will call a residual discretion, quite apart from the Minister's satisfaction of the alternative criteria in s 501CA(4)(b), the question of whether or not the Tribunal in fact purported to recognise or even exercise such a residual discretion is to be answered on a fair reading of the Tribunal's reasons as a whole. The question is whether or not the Tribunal mistook the word "may" in the opening words of s 501CA(4) by failing to proceed on the basis that "may" must necessarily mean "must", as has been recognised by the authorities of this Court. 25 In my judgment, read in context, the Tribunal should be understood as using the word "discretion" in [141] of its reasons to describe the nature of the evaluative task to be performed forming the state of satisfaction required under s 501CA(4)(b)(ii). I do not understand the Tribunal's reasons to suggest that the Tribunal recognised or purported to exercise a residual discretion as to whether or not to refuse to revoke the cancellation decision, in circumstances where neither criteria specified in s 501CB were fulfilled on the facts before it. The Tribunal's concluding substantive paragraph supports an interpretation of the reasons that the Tribunal used the word "discretion" as a summary way to describe the evaluative task it had undertaken. It said: In these circumstances we are not satisfied that there is sufficient reason to revoke the cancellation of the visa … 26 That is a clear reference to the task required under s 501(4)(b)(ii) and not to the exercise of a freestanding discretion independent of that criteria. 27 It is entirely proper that the Minister has raised before the Court the asserted error upon which the application for the remittal order is based. The agitation of the issue is entirely consistent with the obligation of the Minister to act in his capacity as a model litigant. However, with respect, I do not accept the submission that the Tribunal's decision is affected by the error forming the subject matter of Counsel's submissions. On the facts, no occasion arose for the Tribunal to purport to exercise a residual discretion because neither criterion in s 501(4)(b) were met, and the Tribunal's conclusion that neither criterion in s 501(4)(b) were met has not been shown, of itself, to be affected by error. 28 If I am wrong in that conclusion, I would not, in my discretion, make the orders sought by the Minister in any event. The order for remittal sought by the Minister is conditioned by a requirement that the Tribunal decide the matter on the basis of the material upon which the impugned decision was founded. It is an order that would require the Tribunal to decide the matter again, but without hearing further evidence, especially further evidence from Mr Wu, his mother and his sister. Plainly, such an order is within the power of this Court to make under s 44(5) of the AAT Act. 29 However, in the circumstances of the present case, the remittal of the matter to the Tribunal subject to that condition would not, on any view of the facts or law, result in a different outcome for Mr Wu if the matter were remitted to the two Tribunal members who made the decision subject to the appeal. It has not been shown that the decision should be remitted to the Tribunal differently constituted. Moreover, the error that has been asserted by the Minister is not one that could have had any bearing on the relative attribution of weight to the countervailing circumstances that the Tribunal was required to, and did, lawfully consider. 30 There is no basis in fact or law upon which it can be said that Mr Wu passes the character test, and there is no error affecting the Tribunal's conclusion that there is no other reason why the cancellation decision should be revoked. Therefore, s 501CA(4) of the Act mandates that the cancellation decision not be revoked. The Tribunal was required to refuse to exercise the power in s 501CA(4) and that is precisely what it did. 31 Accordingly, for the purposes of s 44(4) of the AAT Act, I do not consider it appropriate to make the orders sought by the Minister because to do so would, in my view, be futile. 32 Nor do I consider it appropriate to make an order, assuming that there was such an error, that the matter be remitted without the imposition of a condition that the Tribunal not receive further evidence. If that order were made, an issue might arise as to whether the Tribunal must decide the matter by reference to facts existing at the time of the original decision, as opposed to facts existing at the time of the decision on remittal. The latter is the so-called forward-looking approach adopted by Besanko J in the decision of Lee v Minister of Immigration and Citizenship (2007) 159 FCR 181 at [49] - [53]. In the absence of an order providing otherwise, I consider that the latter approach to be the correct one, having regard to the task ordinarily performed by the Tribunal in determining an application for review in accordance with what the High Court said in Shi v Migration Agents Registration Authority (2008) 235 CLR 286. In that event, it might be said that Mr Wu would have some prospect of achieving a different result if the matter were to be remitted on an unconditional basis, even to the same Tribunal members. But that is not the order sought by the Minister and I cannot identify a reason consistent with the objectives of the Act to make an order that would have the effect of enabling Mr Wu to agitate for a different result on the merits by reference to different evidence to that upon which he relied, unsuccessfully, before the Tribunal. 33 In the circumstances, I would not grant leave to Mr Wu to amend the notice of appeal so as to include the question of law raised by the Minister. As the grounds specified in the notice of appeal have been rejected, it follows that the appeal must be dismissed. 34 I will make the following orders: (1) The appeal is dismissed. (2) The Registrar is to make available to the appellant by email a read-only copy of the transcript of today's proceeding. (3) The parties are to bear their own costs of the appeal. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.