Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389 (6 April 2001)

Last Updated: 9 April 2001

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389

IMMIGRATION - decision to refuse visa under s 501 of the Migration Act 1958 (Cth) by reason of applicant's failure to pass character test - applicant provided character references - whether Minister had regard to the references in compliance with s 54(1) of the Migration Act - meaning of "have regard to" - inferences to be drawn from statement of reasons.

COURTS AND JUDGES - proceedings instituted in the High Court more than twenty-eight days after applicant notified of decision - matter remitted to the Federal Court - whether Federal Court has jurisdiction to hear matter remitted notwithstanding time limitation in s 478 of the Migration Act.

WORDS AND PHRASES - "have regard to".

Migration Act 1958 (Cth), ss 54, 55, 475, 476(1)(a), 478, 485, 486, 501(1), 501(6), 501G.

Judiciary Act 1903 (Cth), s 44.

Acts Interpretation Act 1901 (Cth), s 25D.

Migration Regulations (Cth), r 1.15A; Sch 2, cl 309.21

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, cited.

Minister for Immigration & Multicultural Affairs v A [1999] FCA 1679; (1999) 91 FCR 435, cited.

Johnstone v The Commonwealth [1979] HCA 13; (1979) 143 CLR 398, cited.

Re O'Reilly; Ex parte Bayford Wholesale Pty Ltd [1983] HCA 27; (1983) 151 CLR 557, cited.

Hocine v Minister for Immigration & Multicultural Affairs [2000] FCA 778; (2000) 99 FCR 269, cited.

Cam v Minister for Immigration & Multicultural Affairs (1998) 84 FCR 14, cited.

Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369, cited.

Re Minister for Immigration & Multicultural Affairs; Ex parte Radojicic (High Court, McHugh J, 21 January 2000, unreported), cited.

A v Pelekanakis [1999] FCA 236; (1999) 91 FCR 70, followed.

Ly v Minister for Immigration & Multicultural Affairs [2000] FCA 15, cited.

Wen v Minister for Immigration & Multicultural Affairs [2000] FCA 320, cited.

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, cited.

R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322, cited.

Minister for Immigration & Multicultural Affairs v Baker (1997) 73 FCR 187, cited.

Minister for Aboriginal & Torres Strait Islander Affairs v Western Australia (1996) 67 FCR 40, cited.

Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17, cited.

Tickner v Chapman (1995) 57 FCR 451, cited.

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, cited.

Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845; (2000) 98 FCR 469, cited.

JAMES SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 170 of 2001

SACKVILLE J

SYDNEY

6 APRIL 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 170 OF 2001

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:	JAMES SINGH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	6 APRIL 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The claim for relief by the applicant, insofar as it has been remitted to the Federal Court of Australia, be dismissed.

2. The applicant pay the respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 170 OF 2001

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:	JAMES SINGH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	6 APRIL 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE PROCEEDINGS

1 On 30 October 2000, the applicant commenced proceedings in the High Court under s 75(v) of the Constitution attacking a decision made by the respondent ("the Minister") on 7 July 2000 to refuse to grant the applicant a Spouse (Provisional (Subclass 309) visa. The applicant sought an order nisi requiring the Minister to show cause why writs of certiorari and mandamus should not be issued quashing the decision and directing him to determine the application according to law.

2 The grounds relied on by the applicant for the relief sought in the High Court are as follows:

"[The Minister]:

(a) failed to take into account relevant considerations relevant to the determination of the power conferred on him by s 501 of the [Migration Act 1958 (Cth)]; and/or

(b) made the decision in circumstances which amounted [to] a breach of the rules of natural justice; and/or

(c) failed to observe procedures that were required by the Migration Act, specifically s 54(1) of that Act, to be observed in connection with the making of the decision."

On 2 February 2001, Gummow J ordered, pursuant to s 44(1) of the Judiciary Act 1903 (Cth) ("Judiciary Act"), that so much of the application for relief as is founded in ground (c) should be remitted to this Court.

3 The Minister refused to grant the applicant a visa because he was not satisfied that the applicant passed the "character test" laid down by s 501(6) of the Migration Act 1958 (Cth) ("Migration Act"). The applicant contends that the Minister failed to observe s 54(1) of the Migration Act which states that

"[t]he Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all the information in the application."

In particular, the applicant says that the Minister failed "to have regard to" six character references attached to a letter sent by the applicant's migration agent on 21 January 2000 to the Department of Immigration and Multicultural Affairs ("the Department") in Fiji.

4 The hearing of an application for an order nisi for a prerogative writ remitted to this Court is governed by Federal Court Rules, O 51A r 5, which provides as follows:

"(1) Subject to subrule (2), when the Court or a Judge hears an application remitted by the High Court for an order nisi for a prerogative writ, the Court or Judge:

(a) will at the same time hear the parties on whether, if the order nisi were made, it should be made absolute; and

(b) if satisfied that an order absolute should be made, will not make the order nisi, but will proceed directly to make the order absolute.

(2) In a particular case, the Court or Judge may order that subrule (1), or any part of it, does not apply."

5 At the hearing, Mr Beech-Jones, who appeared for the Minister, conceded that a failure by the Minister to comply with s 54(1) of the Migration Act amounts to a failure to observe "procedures that were required by [the Migration Act] to be observed in connection with the making of the decision" within the meaning of s 476(1)(a) of the Migration Act. There was therefore no dispute that if the applicant established that the Minister had failed to comply with s 54(1) of the Migration Act, the ground of review provided for in s 476(1)(a) would be made out. Nor did there seem to be any dispute that if the applicant established a breach of s 54(1), it was appropriate for the Court to make the order absolute for writs of certiorari and mandamus.

BACKGROUND

6 The applicant is a Fijian national who is presently in Fiji. He married an Australian citizen on 13 December 1998. The couple have one child, born on 10 December 1999, who resides with her mother in Australia.

7 The applicant first entered Australia in 1987 on a tourist visa issued in the name of Muniappa Maharaj. He subsequently applied for an Extended Eligibility Temporary Entry Permit on the ground that he had married an Australian citizen. That application was withdrawn after the applicant admitted that the marriage had been contrived solely to enable him to gain permanent residence in Australia. The applicant was later detained and was the subject of a supervised departure from Australia in March 1992, with a mandatory three year exclusion from the country.

8 In November 1994, the applicant arrived in Australia on a tourist visa issued in the name of James Singh. He was subsequently issued with a succession of bridging visas enabling him to remain in Australia for specified periods. In April 1996, he applied for permanent residence on the basis that he was a special need relative of his mother, his sponsor. This application was ultimately refused.

9 On 7 September 1999, the applicant was the subject of a monitored departure from Australia.

10 On about 2 June 1999, the applicant lodged an application for a Spouse (Provisional) (Subclass 309) visa with the offices of the Department at the Australian High Commission in Suva, Fiji. (It is not clear whether the applicant was in Australia or Fiji at the time of lodgement.) The criteria for the grant of such a visa include a requirement that the applicant be the spouse of an Australian citizen: Migration Regulations, Schedule 2, cl 309.21. The term "spouse" is defined by Migration Regulations, reg 1.15A.

11 On 3 December 1999, the Department in Suva advised the applicant by letter that a Senior Migration Officer had found that the applicant did not meet the character requirements for entry into Australia laid down by s 501(6)(c)(ii) of the Migration Act. The letter notified the applicant that his application might be refused notwithstanding his relationship with his sponsor. The applicant was invited to comment on the finding. Correspondence then took place between the applicant's migration agent and the Department in Suva. The correspondence included the letter of 21 January 2000 which attached the character references.

12 On 3 April 2000, the Director of the Character Section of the Department in Canberra forwarded to the applicant's agent a "Notice of Intention to Consider Refusing a Visa under Subsection (sic) 501 of the Migration Act 1958". The notice invited the applicant to comment on whether a visa should be refused by reason of his "past and present general conduct". In response to this invitation, the applicant's migration agents forwarded letters dated 26 April 2000 and 30 April 2000 to the Department. (There were two letters dated 26 April 2000, although it seems that one of these may have actually been written on or about 26 May 2000, the date it was apparently received by the Character Section of the Department). Each of the letters commented on matters said by the Director to reflect adversely on the applicant's character.

13 On 7 July 2000, the Minister, acting pursuant to s 501(1) of the Migration Act, personally decided to refuse to grant a Spouse (Provisional) (Subclass 309) visa to the applicant. A copy of the decision record was provided to the applicant. Part E of that document records that the Minister had considered "all relevant matters including an assessment of the character test within the meaning of s 501 of the Migration Act and the [applicant's] comments". Part E also records the Minister's decision that the applicant

"does not pass the character test and has been unable to satisfy me that he passes the character test".

Accordingly, the Minister decided that the visa should be refused.

14 On 11 August 2000, the applicant's legal representatives asked the Minister to provide a written notice setting out the reasons for the decision in accordance with s 501G(1)(e) of the Migration Act. The Minister replied that the decision record previously supplied set out the reasons for the decision in conformity with s 501G(1).

15 As I have noted, the applicant commenced the High Court proceedings on 30 October 2000. The relief originally sought by the applicant in the High Court included a writ of mandamus directing the Minister to provide reasons for his decision, in accordance with s 501G(1) of the Migration Act. On 13 December 2000, the Minister signed a document headed "STATEMENT OF REASONS - DECISION TO REFUSE A VISA UNDER SECTION 501(1) OF THE MIGRATION ACT". After receipt of that document, the applicant abandoned his claim for an order directing the Minister to provide reasons.

THE LEGISLATION

16 Section 47(1) of the Migration Act provides that the Minister is to consider a valid application for a visa. After considering a valid application for a visa, the Minister if satisfied (inter alia) that the criteria prescribed by the Act or the Regulations have been satisfied and that the grant of the visa is not prevented by s 501, is to grant the visa: s 65(1)(a). If not so satisfied, the Minister is to refuse to grant the visa: s 65(1)(b).

17 Section 54(1) of the Migration Act is located within Subdivision AB of Division 3 of Part 2 of the Act. Subdivision AB is headed "Code of procedure for dealing fairly, efficiently and quickly with visa applications". Section 54(1) has been reproduced at [3] above.

18 Information is "in an application" for the purposes of s 54(1) if the information is set out in the application or in a document attached to the application when made, or is given under s 55: s 54(2). Section 55(1) provides that until the Minister has made a decision whether or not to grant or refuse a visa, the applicant

"may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision".

19 Section 501 of the Migration Act deals with refusal or cancellation of a visa on character grounds. Subsections 501(1) and (6) provide as follows:

"(1) The Minister may refuse to grant a visa to a person if 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:

...

(c) having regard to either or both of the following:

(i) the person's past and present criminal conduct;

(ii) the person's past and present general conduct;

the person is not of good character; or

...

Otherwise, the person passes the character test."

When the decision to refuse a visa under s 501(1) is made by the Minister personally, the applicant is not entitled to seek review of the decision in the Administrative Appeals Tribunal: s 500(1). Nor is a decision made under s 501(1) to refuse to grant a non-citizen a visa reviewable by the Migration Review Tribunal, since the decision is not an "MRT-reviewable decision": s 338(2).

20 Section 501G(1) provides that if a decision is made under s 501(1) to refuse to grant a visa to a person the Minister must give the person a written notice that:

"(c) sets out the decision; and

...

(e) sets out the reasons (other than non-disclosable information) for the decision;

...".

A failure to comply with s 501G(1) in relation to a decision does not affect the validity of the decision: s 501G(4).

21 Section 25D of the Acts Interpretation Act 1901 (Cth) provides as follows:

"Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression `reasons', `grounds' or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based."

THE CHARACTER REFERENCES

22 As I have noted, the character references at the centre of the applicant's case were attached to a letter dated 21 January 2000 sent by the applicant's migration agents to the Department in Suva. They were not attached to the application for a visa. Nonetheless, the effect of s 54(2)(c) of the Migration Act is that the information in the references (assuming it to be relevant) is deemed to be "in an application" for the purposes of s 54(1).

23 In the letter of 21 January 2000, the agent addressed issues that had been raised by the Minister's representatives concerning the applicant's past conduct. The letter, for example, offered an explanation of the circumstances surrounding the applicant's conviction for "drink driving" and gave the applicant's reasons for applying for visas in a name different to that he had used when he was required by the Minister to leave Australia in 1992. The letter included the following passage:

"References:

The sponsor has attached 7 references for the applicant who are well known to the applicant and the sponsor and who are Australian Citizens and permanent residence (sic), stating that they know the applicant and the sponsor and they are in touch with the applicant and the sponsor in past and present. All of them believe that applicant is a person of a good character."

24 Of the seven "references" attached to the letter, one does not address the applicant's character, but refers to the hardship suffered by his wife and child because of his exclusion from Australia. The remaining six can fairly be described as character references from persons who knew the applicant.

25 All six character references are relatively brief. All suggest that the applicant is a person of good character. For example, the celebrant who performed the wedding ceremony for the applicant and his wife says that the applicant is

"well liked in the Hindu community and he is of good character."

A friend of the applicant's wife says that he has known the applicant since the latter's marriage in December 1998, and that the applicant

"is a young gentleman intelligent and of good character. He is well respected and loved by everyone in our family."

A Hindu priest says that he has known the applicant for fifteen years from Fiji and that he has "found him to be of very good character" and liked because of his "good behaviour". An acquaintance of eleven years standing states that the applicant has been helpful in working in the Hindu community of Sydney.

26 As Mr Beech-Jones pointed out, some of the referees appear to have had limited knowledge of the applicant. One, for example, merely says that the author met the applicant "last year" and that "as far as [the author] know[s] [the applicant] is dedicated and sincere to his family". Another, written on 10 January 2000, one month after the birth of the applicant's only child (an event which occurred after the applicant's monitored departure from Australia), expresses admiration for "his sincere commitment to his wife and children".

27 None of the references acknowledges or refers to the matters specifically relied on by the Department as suggesting that he might not satisfy the character test in s 501(6) of the Migration Act. In particular, none refers to the applicant's sham marriage in 1990; the false information allegedly provided by him to the Department in connection with his various visa applications; nor to the applicant's conviction for driving while exceeding the prescribed concentration of alcohol or to other more minor offences committed by him in Australia.

28 On 30 April 2000, the applicant's migration agents sent a further written submission on the applicant's behalf to the Character section of the Department. The submission advanced detailed arguments in support of the applicant's contention that the Minister should grant the visa sought by the applicant. Under the heading "Recent Good Conduct", the submission said this:

"In addition to the numbers (sic) character reference provided with the application by the people who knew the applicant and what they thought of him, the applicant has been living a normal life and there is nothing other than the applicant's so-called driving offences. The applicant was married with the nominator and has a baby girl now. The applicant has nothing negative in his life. He was a clean person and that is why he went and made an application for Migration from Fiji when his application could be through here in Australia.

The applicant has been a respectable member of the community. He participates in the activities of the community. The applicant and his nominator have not relied or dependent on the social security and neither they have been jobless in the past. The applicant's conducts (sic) since long time has been excellent."

29 It is not necessary to refer in detail to the other submissions made on the applicant's behalf.

THE MINISTER'S REASONS

30 There are two documents which shed light on the Minister's reasons for refusing to grant a visa to the applicant. The first is the so-called decision record. The second is the statement of reasons dated 13 December 2000 ("the statement of reasons"). Both were admitted into evidence without objection.

31 The decision record is a document forwarded to the Minister under cover of a minute dated 29 June 2000 from the Assistant Secretary, Entry Branch, of the Department. The expressed purpose of the minute was to seek the Minister's decision in relation to the "possible refusal to grant a visa" to the applicant. The minute recommended that the Minister personally consider whether or not to refuse a visa under s 501(1) of the Migration Act. On 7 July 2000, the Minister endorsed the minute "Agreed" and recorded his decision that the visa should be refused.

32 The decision record is headed "ISSUES FOR CONSIDERATION FOR POSSIBLE VISA REFUSAL UNDER SECTION 501(1) OF THE MIGRATION ACT 1958". It recites the immigration history of the applicant (Part A) and the grounds for cancellation specified in s 501 of the Migration Act (Part B).

33 Part C of the decision record contains an assessment of the case. It notes that on 21 January 2000 a submission was received from the applicant's migration agent. The decision record attaches both a copy of the letter of 21 January 2000 and the character references annexed to that letter. It also records and attaches a copy of the other submissions made on behalf of the applicant. The record contains this statement:

"8. Comments from the above submissions have been included in this decision where relevant".

34 Part C of the decision record recounts the matters that are said to leave it open to find that the applicant has not satisfied the Minister that he passes the character test. Those matters include the following:

* the 1990 sham marriage;

* the fact that the applicant had worked for substantial periods without authority in Australia;

* the fact that the applicant had changed his name and made no mention of the name change when he subsequently applied for visas;

* the fact that the applicant gave a number of false answers to questions asked of him by Departmental officers at various times; and

* the applicant's convictions (albeit for relatively minor offences committed more than a decade earlier).

35 Part D of the decision record addresses discretionary considerations such as the nature and seriousness of the applicant's conduct, the significance of general deterrence, the expectations of the Australian community and the interests of the applicant's spouse and child. Part D makes no express mention of the character references.

36 Part E records the Minister's decision (see [13] above). The Minister noted his decision by indicating agreement or disagreement with the alternative outcomes set out in the decision record provided for his consideration. Part E of the decision record also makes no express mention of the character references.

37 The statement of reasons sets out the matters "[taken] into account", "noted" or "[taken] into consideration" by the Minister. The statement records that the Minister took into account the submission in the agent's letter of 21 January 2000 that the applicant had not intended deliberately to hide his name. The statement contains no other express reference to the letter of 21 January 2000. It contains, however, the following paragraphs:

"30. In accordance with section 501(1), Mr Singh was unable to satisfy me that he passed the character test on account of his past and present general conduct as set out in section 501(6)(c)(ii).

31. In exercising my discretion whether to refuse Mr Singh's visa, I took into account all matters referred to in the document titled "Issues for Consideration" accompanied by a Minute signed by Darlo Castello, Assistant Secretary, Entry Branch dated 29 June 2000, including evidence of Mr Singh's past and present general conduct. I also had regard to submissions made by Mr Singh's migration agents on 26 April 2000, 26 May 2000 and 3 May 2000 in response to a notice of intention to consider the possible refusal of his visa under section 501(1)." (Emphasis added.)

38 The statement also records that in reaching his decision, the Minister took into account the applicant's ties to the Australian community.

THE SUBMISSIONS

39 There was some common ground between the parties, apart from the Minister's concession that a contravention of s 54(1) of the Migration Act gives rise to a ground of review under s 476(1)(a). Mr Beech-Jones accepted that the character references constituted "relevant information" for the purposes of s 55(1) of the Migration Act and that the Minister was therefore bound "to have regard to" them. For his part, Mr Williams, who appeared with Mr Momsen for the applicant, accepted that it was open to the Minister to place little or no weight on the character references, provided that he had regard to them. Mr Williams also accepted that the applicant bore the onus of establishing on the balance of probabilities that the Minister did not "have regard to" the character references within the meaning of s 54(1) of the Migration Act.

40 Mr Williams characterised the issue before the Court as one of mixed fact and law. The question of law he identified was the meaning of the expression "have regard to all the information in the application" in s 54(1) of the Migration Act. Mr Williams suggested that s 54(1) could have one of two meanings:

(i) first, that the Minister is obliged to take into account the information in the application as a fundamental element in the decision-making process; or

(ii) secondly, that the Minister is obliged to give proper, genuine and realistic consideration to the information in the application.

Mr Williams, if I understood him correctly, expressed a preference for the first approach, but submitted that even if the second were to be adopted the Minister had failed to comply with his statutory obligation.

41 Mr Williams accepted that the applicant bears the onus of satisfying the Court, on the balance of probabilities, that the Minister did not have regard to the character references. He submitted, however, that I should infer from the evidence that, whatever the correct construction of s 54(1) of the Migration Act, the applicant had discharged his onus. He relied on the following:

* Since the decision record states that comments from the applicant's submissions had been included in the record where relevant (see [33] above), I should infer that the Minister would not have looked beyond the decision record itself. In particular, the likelihood was that he did not read the character references forwarded under cover of the minute dated 29 June 2000.

* When the Minister supplied a second set of reasons no reference was made to the character references or the contents thereof. A mere general assertion that the Minister had regard to the applicant's submissions could not overcome the inference that he paid no regard to all character references.

* Section 501G(1)(e) of the Migration Act required the Minister, if one of his reasons for refusing a visa to the applicant was that the placed little or no weight on the character references, to disclose that element of his reasoning process. Since he did not disclose any such element, the inference could more safely be drawn that he did not in fact consider the weight that should have been given to the character references.

* The principle derived from Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 warranted the drawing of inferences against the Minister by reason of his unexplained failure to give evidence.

42 Mr Beech-Jones submitted, without reference to authority, that s 54(1) of the Migration Act merely requires the Minister to be "cognisant" of the information provided by an applicant. It was not necessary, so he argued, for the Minister to have weighed the material, so long as he was aware of its existence.

43 Alternatively, Mr Beech-Jones contended that even if it was necessary for the Minister to give "proper, genuine and realistic" consideration to the information on the application, the applicant had failed to satisfy the burden of demonstrating that the Minister had not given such consideration to the character references. The evidence as a whole established that the Minister had considered the character references. It followed that the applicant had not discharged the evidentiary onus on him.

A JURISDICTIONAL ISSUE

44 At the outset of the hearing, I drew attention to the fact that the applicant had commenced the High Court proceedings some four months after the Minister's decision. Section 478(1) of the Migration Act provided that an application for review under s 476 must:

"(a) be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976; and

(b) be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision."

45 The Federal Court must not make an order which has the effect of allowing an applicant to lodge an application outside that period: s 478(2).

46 Section 485(1) of the Migration Act provides that the Federal Court is not to have any jurisdiction in respect of "judicially reviewable decisions" other than the jurisdiction provided by Part 8 of the Migration Act or s 44 of the Judiciary Act. Section 485(3) of the Migration Act provides as follows:

"(3) If a matter relating to a judicially-reviewable decision is remitted to the Federal Court under section 44 of the Judiciary Act 1903, the Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under this Part."

47 I inquired of the parties whether, in view of ss 478 and 485(3) of the Migration Act, I had jurisdiction to determine the matter remitted by the High Court. I had in mind that the existence of an order by the High Court remitting a matter to the Federal Court does not necessarily mean that the order is effective to confer jurisdiction on the Federal Court: Minister for Immigration and Multicultural Affairs v A [1999] FCA 1679; (1999) 91 FCR 435, at 458, per Emmett J.

48 The parties were granted leave to file further written submissions on the jurisdictional issue. In those submissions, the parties were agreed that the Court has jurisdiction in the present case to determine the matter remitted, although the reasoning differed somewhat.

49 The applicant's argument was to the following effect:

(i) Section 44(1) of the Judiciary Act empowers the High Court to remit the whole or part of a pending matter to any federal or State court "that has jurisdiction with respect to the subject-matter and the parties".

(ii) The court to which a matter is remitted has jurisdiction to deal with it by virtue of s 44(1) of the Judiciary Act. What s 44(1) does is to confer jurisdiction on the court to which the matter is remitted provided the High Court is authorised to remit the matter and does in fact so remit: Johnstone v Commonwealth [1979] HCA 13; (1979) 143 CLR 398, at 409, per Aickin J.

(iii) It is not necessary for the court to which the matter has been remitted to have jurisdiction independently of the remitter. It is enough that the court has jurisdiction over the same kind of party and the same subject matter as that over which the High Court has jurisdiction: Johnstone v Commonwealth, at 408, per Aickin J; Re O'Reilly; Ex parte Bayford Wholesale Pty Ltd [1983] HCA 27; (1983) 151 CLR 557, at 559, per Dawson J.

(iv) In the present case, this Court has jurisdiction over the parties. It also has jurisdiction to review "judicially-reviewable decisions" including those made by the Minister refusing to grant visas: Migration Act, ss 475(1)(c), 486 (the Minister's decision not being reviewable by a Tribunal). The Court may exercise the power of review on the ground specified in s 476(1)(a) of the Migration Act, relating to a failure to comply with the statutory procedures. Thus the Court has jurisdiction "with respect to the subject matter" of the matter remitted for the purposes of s 44(1) of the Judiciary Act.

(v) The "subject matter" of this Court's jurisdiction is not limited by s 478 of the Migration Act. Section 478 is, in terms, limited to applications lodged with the Federal Court in the manner specified by the Federal Court Rules. It is not intended to be a limitation upon the power of remittal conferred on the High Court under s 44(1) of the Judiciary Act. Any other view would render nugatory the express preservation of s 44(1) of the Judiciary Act by s 485(1) of the Migration Act. It follows that, even if s 478 imposes a jurisdictional limitation on the Federal Court (see Hocine v Minister for Immigration and Multicultural Affairs [2000] FCA 778; (2000) 99 FCR 269, at 280-281, per French J), it does not prevent remittal of a matter commenced in the High Court more than twenty-eight days after the applicant was notified of the Minister's decision.

(vi) The limitation imposed by s 485(3) of the Migration Act goes to power, not jurisdiction: cf Cam v Minister for Immigration (1998) 84 FCR 14, 39-40, per Mansfield J. Whatever its correct interpretation, s 485(3) cannot deprive the Court of jurisdiction in the present case.

50 Mr Beech-Jones accepted steps (i) to (iv) in the applicant's argument. He submitted, however, that s 478 restricts the powers of the Federal Court and does not limit its jurisdiction, at least for the purposes of s 44(1) of the Judiciary Act. He relied on a passage from the judgment of Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369, at 388-389, applied by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Radojicic (High Court, 21 January 2000, unreported). Dixon J in Parisienne Basket held that a limitation of time for laying an information is not a limitation upon the jurisdiction of the court before which the charges come for hearing. By the same reasoning, so Mr Beech-Jones contended, this Court has jurisdiction to deal with an application for an order for review filed outside the period provided for by s 478 even though the Court is required to dismiss the application.

51 In the absence of any argument to the contrary, I am prepared, on the basis of the applicant's contentions, to accept that I have jurisdiction to determine the matter remitted to this Court by the order of the High Court. I do not think it necessary to express a view on the alternative argument advanced by Mr Beech-Jones.

CONSTRUCTION OF SECTION 54(1) OF THE MIGRATION ACT

52 Neither party referred to authorities that have considered the meaning of s 54(1) of the Migration Act. Some cases have done so, although the sub-section has not been the subject of a decision of the Full Court: see A v Pelekanakis [1999] FCA 236; (1999) 91 FCR 70 (Weinberg J) (reversed on appeal, but not on the s 54(1) point: Minister for Immigration and Multicultural Affairs v A [1999] FCA 1679; (1999) 91 FCR 435; Ly v Minister for Immigration and Multicultural Affairs [2000] FCA 15 (Kenny J), at [12]; Wen v Minister for Immigration and Multicultural Affairs [2000] FCA 320 (Mansfield J), at [56]. The starting point is, however, the text and statutory context of s 54(1). A number of points should be noted.

53 First, s 54(1) uses mandatory language. The Minister must, in deciding whether to grant or refuse a visa, have regard to all of the information in the application. As Weinberg J pointed out in A v Pelekanakis, at 81, the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, at 389-390, has said that the classification of statutory provisions as mandatory or directory diverts attention from the true question, namely whether the legislation intends that an act contravening the legislation should be invalid. Weinberg J took the view that s 54(1) imposes a duty on the Minister, a breach of which will lead to the invalidity of a decision by the Minister to refuse a visa being liable to be set aside. I did not understand Mr Beech-Jones to dispute this approach. In any event, given Mr Beech-Jones' concession that a contravention of s 54(1) enlivens the ground of review in s 476(1)(a), I respectfully think it is correct.

54 Secondly, s 54(1) of the Migration Act employs the expression "have regard to". This expression is capable of different meanings, depending on its context. As Mr Williams pointed out, a statutory obligation to have regard to specified matters when making an administrative decision may require the decision-maker to take the matters into account and "give weight to them as a fundamental element in making his [or her] determination": R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322, at 329, per Mason J. Indeed, this is the meaning that was given to the predecessor of s 501(6)(c) of the Migration Act (relating to the character test): Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187, at 194. But the phrase "have regard to" can simply mean to give consideration to something (Shorter Oxford English Dictionary). In this sense a direction to a decision-maker to have regard to certain factors may require him or her merely to consider them, rather than treat them as fundamental elements in the decision-making process.

55 Thirdly, s 54(1) requires the Minister to have regard, not to one or two specific matters, but to "all of the information in the application", including additional information provided in accordance with s 55. The information may range over a wide field and may take many different forms. It may go to the heart of the applicant's case or it may be of marginal relevance (cf s 55(1), which includes the word "relevant"). The context in which the expression "have regard to" is used in s 54(1) is different, for example, from the context in which the same expression is used in s 501(6)(c). Section 54(1) is also different from the provision considered in Ex parte Sean Investments, which required the decision-maker to have regard to one matter only, a fact that Mason J considered to be important in construing the provision: at 329.

56 Fourthly, s 54(1) applies not only to decisions made by the Minister personally, but to decisions made by delegates of the Minister. For practical reasons, most decisions to grant or refuse to grant visas are, of course, made by the Minister's delegates. In some cases (such as the present), the Minister may choose to act personally, while in others the power to refuse a visa can only be exercised by the Minister personally (see, for example, s 501(3) which empowers the Minister to refuse to grant a visa where he or she reasonably suspects that the applicant does not pass the character test and is satisfied that refusal is in the national interest). Section 54(1) therefore has a different practical operation than similar provisions which apply to powers that can only be exercised by the Minister personally: see, for example, s 10(1)(c) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), considered in Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia (1996) 67 FCR 40, at 60-63.

57 In my view, s 54(1) does not require the Minister (or his or her delegate) to take into account the information in the application as a fundamental element in the decision-making process. As I have noted, the sub-section directs the Minister to have regard to "all of the information in the application". It could hardly have been contemplated by the drafters that every piece of information selected for mention by an applicant, no matter how marginal its relevance to the issues to be determined, must be treated by the decision-maker as a "fundamental element" in making the determination. The ordinary meaning of the words in s 54(1) does not suggest otherwise. Moreover, such a construction would render the decision-making process unworkable, not least because the Minister would have to treat the matters referred to in s 501(6)(c) of the Migration Act and all the information in the application as fundamental elements in determining whether an applicant passes the character test.

58 Equally, I do not think that s 54(1) is satisfied merely by the Minister, as the decision-maker, being aware of the information in the application. The expression "have regard to" suggests a process of consideration of information. In order to consider something it is doubtless necessary to know that the thing exists, but more is needed. A decision-maker may be aware of information without paying any attention to it or giving it any consideration.

59 I doubt that much is to be gained by attempting to be more precise about the extent to which the Minister is bound to consider the information in the application in order to comply with s 54(1) of the Migration Act. In A v Pelekanakis, Weinberg J said that the duty imposed by s 54(1) would not be discharged "if no realistic regard is had to [the] information" (at 82): see also Wen v Minister, at [56]. I would not dissent from that proposition, although I would add that for consideration to be "realistic" or "genuine" (cf Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17, at [105], per Gleeson CJ and Gummow J), there must be what Black CJ has described as "an active intellectual process" directed at the information: Tickner v Chapman (1995) 57 FCR 451, at 462; see also at 495, per Kiefel J. The extent of the required intellectual process must depend on the nature of the information and its degree of relevance: Tickner v Chapman, at 462-463.

THE FACTUAL QUESTION

60 I now turn to the question of fact: does the evidence establish on the balance of probabilities that the Minister failed, in the relevant sense, to have regard to the character references attached to the letter of 21 January 2000?

61 I accept the proposition put forward by Mr Williams that a mere assertion in general terms that a decision-maker has had regard to a matter does not necessarily show that in fact he or she did so: Minister for Aboriginal Affairs v Western Australia, at 60. Thus the general assertion in the decision record that the Minister had "considered all relevant matters" cannot be conclusive. Nor does such an assertion necessarily negate any inference that may be available from other evidence that a decision-maker failed to have regard to matters he or she was required to take into account. The evidence as a whole must be considered.

62 In this case, both parties treated the decision record and the statement of reasons as evidence of the Minister's decision-making process, although they drew different inferences from the documents. It is therefore necessary to examine these documents to determine whether the evidence as a whole supports the applicant's contention that the Minister did not have regard to the information in the character references when making his decision. In my opinion, there are a number of factors suggesting that, contrary to the applicant's submissions, the Minister did have regard, in the relevant sense, to the character references.

63 First, the agent's letter of 21 January 2000, together with the character references themselves, were attached to the draft decision record provided to the Minister on 29 June 2000. A copy of the agent's letter of 30 April 2000, which specifically mentioned the character references, was also attached to the draft decision record. I infer, therefore, that the critical documents were before the Minister at the time he made his decision by endorsing the decision record on 7 July 2000.

64 Secondly, the statement of reasons specifically says that in exercising his discretion to refuse the visa, the Minister

"took into account all matters referred to in the document titled `Issues For Consideration' accompanied by [the minute of 29 June 2000] including evidence of [the applicant's] past and present general conduct".

I interpret this statement as intending to convey that the Minister took into account not only the matters actually set out in the text of the draft decision record, but the matters referred to in that document. Among the matters referred to in the decision record is the fact that the applicant's agent had made submissions on his behalf in the letter of 21 January 2000. Moreover, the character references attached to the letter of 21 January 2000 answer the description of "evidence of the [applicant's] past and present general conduct", since they refer to his work in the community and his "good behaviour". The statement of reasons, although expressed in general terms, therefore provides affirmative evidence that the Minister gave consideration to the contents of the character references.

65 Thirdly, the Minister's reasons should be given a beneficial construction: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, at 272. In construing those reasons, it must be remembered (as Mr Williams conceded) that it was open to the Minister to give little or no weight to the character references. I have pointed out that the references did not address the issues that had been identified as central to the question of whether the applicant satisfied the character test. Moreover, as was recently reaffirmed in Minister v Jia, at [65], per Gleeson CJ and Gummow J, "character" for the purposes of s 501(6)(c) is:

"a matter of endorsing moral qualities, that is to say, disposition rather than general reputation."

It is perhaps not surprising in view of the nature of the character references that the reasons do not in terms state why the Minister found them unpersuasive on the critical issues. A fair reading of the reasons suggests that the Minister took the view that the applicant's history (as the Minister saw it) of dishonest contraventions of Australian migration laws and other criminal conduct was not offset by the perceptions of his referees that he was a person of good character and conduct.

66 Fourthly, in my opinion, there is nothing improbable in concluding that the likelihood is that the Minister read the material supplied to him, including the character references. The material was not voluminous, and could have been read by the Minister within a relatively short time. This is not a case, for example, where the evidence casts doubt on the ability of the Minister to have considered the relevant material in the time available to him: cf Minister v Western Australia, at 61-62. Moreover, as I have indicated, the conclusion that the Minister read the references is supported by the statement of reasons.

67 I should add that the text of both the letters of 21 January 2000 and of 30 April 2000 contain specific mention of the character references. Indeed, the letter of 30 April 2000 includes what I would regard as a fair summary of the substance of the references. Even a relatively cursory reading of the letters would have brought home to the Minister that the applicant's referees believed that he was a person of good character; that they regarded him as a respectable member of the community who participated in community activities; and that they considered that there was nothing negative in his life.

68 I think that the likelihood, on the evidence as a whole, is that the Minister did read the character references; in any event, I am not satisfied on the balance of probabilities that he did not. But even if the Minister confined himself to reading the submissions prepared by the applicant's agent, he would have appreciated and been able to "have regard to" the main points made in support of the applicant by the referees. It must be remembered that the summary of the character references was prepared by the applicant's own agent. It is difficult to see why it would not be sufficient compliance with s 54(1) of the Migration Act for the Minister to determine what weight was to be accorded the character references on the basis of the agent's summary of their contents. The provision requires the Minister to have regard to "all the information" in the application. In my view "information" contained in character references is capable of being conveyed by a reasonably accurate summary prepared by the applicant's agent.

69 I do not think that the statement in par 8 of the decision record that "[c]omments from the above submissions have been included in this decision record, where relevant" detracts from the conclusion I have reached. That statement cannot reasonably be understood as an invitation to the Minister to refrain from reading or considering anything other than the comments set out in the draft decision record. If that had been intended, there would have been little point in attaching to the draft decision record the submissions and the related documentation received from the applicant's migration agents. In my view, the statement in par 8 was merely intended to draw to the Minister's attention that the principal responses of the applicant had been incorporated into the draft decision record. Paragraph 8 did not say or imply that everything that might be relevant to the applicant's case had been reproduced in the draft decision record and that, accordingly, the Minister had no need to read the submissions advanced on behalf of the applicant.

70 Nor do I accept the applicant's argument based on what is said to be a failure by the Minister to state that he placed little or no weight on the character references. Mr Williams argued, on the basis of the majority judgment in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845; (2000) 98 FCR 469, at 481, that if the Minister was actually induced to come to his decision because he placed no weight on the character references he was obliged by s 501G(1)(e) to disclose that element in the reasoning process. For the reasons I have given, a fair reading of the decision record and the statement of reasons discloses that the Minister did consider the references, but gave them little or no weight in deciding that he was not satisfied that the applicant had passed the character test.

71 Finally, in my view, the rule of evidence in Jones v Dunkel does not assist the applicant. Assuming that rule to apply in the present case, the unexplained failure of the Minister to give evidence does not provide positive evidence that he did not have regard to the character references, but leaves the Court in a position where opposing inferences can be drawn more confidently because they are not contradicted by the person who has knowledge of the relevant events: Minister v Western Australia, at 62. The reasons of the Minister are in evidence. As I have explained, the evidence suggests that the Minister did have regard to the character references. In short, the inferences that the applicant seeks to draw have been contradicted by the Minister's statement of reasons.

72 I should add that some observations in Minister v Jia suggest that the principle in Jones v Dunkel may not apply to Ministers whose personal decisions are challenged in judicial review proceedings in the same way as it does to other litigants who choose not to give evidence: see at [143], per Kirby J; at [284], per Callinan J. It is not necessary to decide whether these observations, which were made in a case involving claims of actual bias against the Minister, apply to the circumstances of the present case.

73 In my opinion, on the balance of probabilities, the Minister gave realistic consideration to the information contained in the character references by means of an "active intellectual process". He therefore complied with the requirements of s 54(1) of the Migration Act. It follows that the applicant has not satisfied me that the Minister did not "have regard to" the references. Accordingly, the applicant has not made out the claim for relief remitted to this Court.

CONCLUSION

74 The applicant's claim for relief, insofar as it has been remitted to this Court, fails. The claim should be dismissed, with costs.

I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated: 6 April 2001

Counsel for the Applicant:	Mr N J Williams with Mr J H Momsen
Solicitor for the Applicant:	Ron Kessels, Solicitors
Counsel for the Respondent:	Mr R Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 March 2001
Date of Judgment:	6 April 2001