Roberts v Minister for Immigration & Multicultural Affairs (Corrigendum dated 10 June 2004) [2004] FCA 739 (9 June 2004)

Last Updated: 15 June 2004

FEDERAL COURT OF AUSTRALIA

Roberts v Minister for Immigration & Multicultural Affairs [2004] FCA 739

ARTHUR REGINALD ROBERTS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W225 OF 2001



FRENCH J
9 JUNE 2004 (Corrigendum dated 10 June 2004)
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W225 OF 2001

BETWEEN:	ARTHUR REGINALD ROBERTS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	FRENCH
DATE:	9 JUNE 2004 (Corrigendum dated 10 June 2004)
PLACE:	PERTH

CORRIGENDUM

1 At par 37, after the words ‘I should apply it.’, insert the following sentence:

‘Although my comments in Nezovic (No 2) at [32] and [55] conveyed a contrary view they were obiter. There was no debate in that case about the application of the former s 476(1)(a).’

I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice French.

Associate:
Dated: 10 June 2004

FEDERAL COURT OF AUSTRALIA

Roberts v Minister for Immigration & Multicultural Affairs [2004] FCA 739

IMMIGRATION – judicial review – cancellation of visa – failure to pass character test – substantial criminal record – conspiring to import ecstasy – 15 year sentence – purported cancellation of visa by delegate – setting aside of delegate’s decision by Administrative Appeals Tribunal – cancellation of visa by Minister – reference to non-existent visa in Issues Paper - permanent entry permit – deemed visa after 1 September 1994 – failure to give reasons for decision – whether decision vitiated – whether failure to consider national interest – failure to set aside Administrative Appeals Tribunal decision




Migration Act 1958 (Cth) s 501, s 501A, s 501G, s 476(1)
Migration Reform Act 1992 (Cth) s 14, s 16A, s 16B, s 17, s 18, s 43, s 46


Migration Reform (Transitional Provisions) Regulations 1994 (Cth) reg 4




Minister for Immigration, Multicultural and Indigenous Affairs Ex parte Palme [2003] HCA 56; (2003) 201 ALR 327 cited
Minister for Immigration and Multicultural Affairs v W157/00A [2002] FCAFC 281; (2002) 125 FCR 433 followed
Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2003] FCA 1263; (2003) 203 ALR 33 cited
W157/00A v Minister for Immigration and Multicultural Affairs (2001) 190 ALR 55 cited
Minister for Immigration, Multicultural and Indigenous Affairs v Schwart [2003] FCAFC 229 applied
Re Paterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 cited





ARTHUR REGINALD ROBERTS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W225 OF 2001



FRENCH J
9 JUNE 2004
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W225 OF 2001

BETWEEN:	ARTHUR REGINALD ROBERTS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	FRENCH
DATE OF ORDER:	9 JUNE 2004
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The decision of the respondent made on 4 May 2001 to cancel the applicant’s visa is set aside.

2. The question of the cancellation of the applicant’s visa is remitted to the Minister for reconsideration according to law.

3. The applicant is to be forthwith released from detention under the provisions of the Migration Act 1958 (Cth).

4. Liberty to the parties to apply within fourteen days for further orders.

5. The respondent pay the applicant’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W225 OF 2001

BETWEEN:	ARTHUR REGINALD ROBERTS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	FRENCH
DATE:	9 JUNE 2004
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

2 On 13 November 1998, Arthur Reginald Roberts, a British subject, was sentenced to 15 years imprisonment for conspiring with his brother to import ecstasy tablets into Western Australia. Mr Roberts first came to Australia in 1977 and although he has revisited the United Kingdom from time to time since then he evidently regards Australia as his home. He is not an Australian citizen. His two children, one of his first marriage and the second of another relationship, live here as does his elderly father. His children are both Australian citizens. He is married to an Australian citizen.

3 On 30 June 2000, a delegate of the Minister for Immigration and Multicultural Affairs purported to cancel Mr Roberts’ visa on the basis that he had a substantial criminal record and thereby failed to pass the character test prescribed by the Migration Act 1958 (Cth) (‘the Act’). That decision was set aside by the Administrative Appeals Tribunal (‘the AAT’) which substituted a decision that the visa not be cancelled. The Minister then stepped in and purported to cancel Mr Roberts’ visa under s 501A of the Act on the basis, inter alia, that such cancellation was in the national interest.

4 Mr Roberts applied to this Court for judicial review of the Minister’s decision. For the reasons that follow I am of the opinion that the cancellation decision has miscarried as the Minister failed to consider the actual visa in respect of which he was exercising the cancellation power. He was misdirected by his Department to a non-existent visa of a kind that had never been held by Mr Roberts and certainly was not held by him at the time of the cancellation decision. He was not directed to the visa actually held by Mr Roberts. At the time of the decision Mr Roberts had been the holder of a permanent entry permit since 12 June 1994 which had become, by virtue of the Migration Reform (Transitional Provisions) Regulations 1994 (Cth), a Transitional (Permanent) Visa from 1 September 1994. The Minister’s decision will be set aside and the matter remitted for reconsideration according to law. This decision does not turn upon a mere technicality. The cancellation of a person’s visa is a serious matter, which will ordinarily result in that person being taken into immigration detention. It is necessary that careful attention be given to identifying the visa which is to be cancelled. The identification by the decision-maker of the visa which is the subject of the cancellation power is necessary to the exercise of the power to cancel it.

5 Further, in this case, the AAT had made a decision that Mr Roberts’ visa not be cancelled. Before the Minister could substitute his own decision to, in effect, override that of the AAT he was required by the Act to set aside the AAT decision. That was not done. The latter point was not argued in the case however. It is on the former point, relating to the failure to identify the visa to be cancelled that the application succeeds.

Factual and Procedural History

6 Arthur Reginald Roberts was born in Great Britain on 15 March 1952. He first entered Australia on 11 November 1977 to visit the parents of the woman who became his first wife. Since his arrival in this country Mr Roberts has permanently resided in Australia although he has had nine absences for travel of various periods. There was one absence of 22 months between June 1979 and April 1981 and a number of absences extending from fourteen days to three months between 1986 and 1994.

7 Prior to his arrival in Australia in 1997 Mr Roberts, according to his incoming passenger card, was the holder of a visa subject to conditions designated K10G(SP)W088. He was granted an entry permit upon his entry into this country. This reflected the visa and entry permit system for regulating non-citizen travel to, entry into and stay within Australia during the period from the enactment of the Act to its amendment by the Migration Reform Act 1992 (Cth). The relevant provisions of that amendment did not come into effect until 1 September 1994.

8 On 12 June 1994, when he last re-entered Australia Mr Roberts was, according to his passenger card, the holder of a visa in Category 155 and was granted an entry permit permitting him to enter and remain in Australia subject to any conditions and limitations on period of stay shown in the visa. It is not in dispute that at the date of this re-entry into Australia his entry permit was a permanent entry permit. It follows, as appears later in these reasons, that by operation of the Migration Reform Act 1992 and the Migration Reform (Transitional Provisions) Regulations 1994, Mr Roberts’ entry permit was taken from 1 September 1994, to be a Transitional (Permanent) Visa permitting him to remain indefinitely in Australia.

9 Mr Roberts had a son Manu by his first wife in Perth in 1979. That marriage broke down in 1982 and his wife and son moved to the Eastern States in 1984. He had a second son, Kai, by Irissa Williams on 1 May 1991. Mr Roberts is presently married to Melanie Roberts whom he met in 1993. They married in November 1996.

10 On 18 March 1997, Mr Roberts was convicted after trial, in the District Court of Western Australia, of the offence of conspiring to obstruct the course of justice. The offence was said to have been committed between 15 September 1982 and 12 January 1983. He was sentenced to twelve months imprisonment of which he was required to serve 4 months and thereafter to be released upon entry into a recognisance in the sum of $1,000 for a period of 8 months. The sentence was backdated to 2 May 1995 as Mr Roberts had been in custody since that time while awaiting his trial. The conspiracy was entered into with his brother who was on bail awaiting trial for offences of importing cannabis. Mr Roberts was not said to have been involved in his brother’s alleged drug trafficking offence at that time but did assist him to leave Australia in breach of his bail terms by providing him with his own passport.

11 On 23 September 1998, Mr Roberts was convicted along with his brother, of conspiring to import trafficable quantities of ecstasy tablets between 1993 and 1995. He was sentenced to a term of 15 years imprisonment backdated to 13 May 1996. A non-parole period of eight years was fixed.

12 On the facts described in the remarks of the sentencing judge, the conspiracy was a continuing offence which occurred over a lengthy period between 1993 and 1995 and resulted in the importation of two substantial quantities of ecstasy tablets into Australia. A third importation which was planned did not proceed because of the arrest of Mr Roberts and his brother. Mr Roberts was described in the sentencing remarks of the judge as ‘a regular wholesale supplier of substantial quantities of ecstasy tablets to various dealers in and around Perth’. One of these was Melanie Hultink who Mr Roberts married in 1996.

13 The first importation which took place in November 1993 involved thousands of ecstasy tablets. Mr Roberts travelled to the United Kingdom in January 1993 to negotiate terms with the supplier. The manner of importation was sophisticated. The tablets were packed in layers in a specially designed rack in the base of a collapsible suitcase. This was wrapped in plastic film and carbon paper to defeat x-ray examination of the luggage. The second importation was arranged in January 1994. Mr Roberts also arranged for cash transfers to the supplier. Melanie Hultink and another person opened bank accounts at various branches using false names. The proceeds of the sale of the ecstasy tablets were paid into these and transferred in amounts of less than $10,000 to accounts in London and Barcelona. A total of $138,000 was transferred overseas in this fashion. A third importation was arranged in April 1994. At this point Mr Roberts recruited his brother Andrew as an active participant in the conspiracy.

14 The sentencing judge found that Mr Roberts played the central role in the conspiracy. He said:

‘In light of all the facts I have outlined it is clear that you, Arthur Reginald Roberts, played the central role in the conspiracy. The only aspect of the conspiracy that was not subject to your control was the actual supply of the ecstasy tablets by [the supplier]. Apart from [the supplier] all of your co-conspirators performed their respective roles in accordance with instructions and directions from yourself.’

15 On 10 August 1999, a notice was sent to Mr Roberts by the Department of Immigration and Multicultural Affairs of intention to cancel his visa under subs 501(2) of the Act. The notice referred to Mr Roberts as ‘currently the holder of a Subclass 155 (Return Resident) visa granted ... on 22 December 1993’. On 7 September 1999, migration agents acting for Mr Roberts put a written submission on his behalf to the Department and attached annexures comprising:

A. A confidential psychological and pre-sentence report dated 27 October 1998 from Mr B Christman, a clinical psychologist.
B. A psychological report dated 31 August 1999 prepared by Roger Summers, a clinical psychologist.
C. A clinical psychological report in relation to Mr Roberts and his son Kai dated 30 August 1999 together with a supporting letter from Irissa Williams.
D. A letter to the Department dated 26 August 1999 from Mr Roberts’ son Manu.
E. A letter from Mrs Melanie Roberts to DIMA and a psychological report from Mr LF Murray dated 6 September 1999.
F. A handwritten letter to DIMA from Mr Roberts’ father, Reginald Hope Roberts.
G. A letter from Mr Arthur Roberts to DIMA – undated.
H. A letter from the Directors of the Denmark Trust, S & A Powers, to DIMA.
I. Letters of support from Mr Roberts’ parents-in-law and close friends to DIMA.

16 On 30 June 2000, a delegate of the Minister for Immigration and Multicultural Affairs, Mr V Watt, decided that Mr Roberts did not pass the character test under s 501, that he would not exercise his discretion not to cancel the visa and that Mr Roberts’ visa should be cancelled. The visa class was described in the Issues Paper presented to the delegate as BF-155. The date of grant was described as 22 December 1993. The stay period for the visa was described as ‘indefinite’. Notice of the cancellation was given to Mr Roberts by letter dated 30 June 2000. Mr Roberts then appealed to the AAT. On 19 September 2000, Deputy President SP Hotop made a decision resulting in the following orders:

‘1. Sets aside the decision of a delegate of the respondent dated 30 June 2000; and
2. In substitution therefor (sic) decides that, notwithstanding the fact that the applicant does not pass the character test within the meaning of s 501(6)of the Migration Act 1958 ("the Act"), his Subclass 155 (Return Resident) visa should not be cancelled under section 501(2) of the Act.’

17 On 19 October 2000, a letter was sent to Mr Roberts at Albany Regional Prison by Mr R Bailey of the Cancellation and Detention Section of DIMA. In that letter he notified Mr Roberts that the Minister might still set aside the AAT’s decision under s 501A of the Act and cancel his visa. He identified the relevant provision as s 501A(2)(b). A copy of the full text of ss 501 and 501A was annexed to the letter. Mr Roberts was provided with an opportunity to comment before the Department prepared a submission for the Minister. It was said in the letter:

‘The Department will then prepare a submission for the Minister to decide whether he suspects that you do not pass the character test (as defined by s 501). The Minister will also decide whether you satisfy him that you pass the character test or not, and decide whether cancellation of your visa is in the national interest.’

Mr Roberts was told that, in reaching a decision whether to cancel his visa, the Minister might have regard, amongst other factors, to his past and present criminal conduct and the Minister’s Direction Number 17 entitled ‘Direction under Section 499 – Visa Refusal and Cancellation under Section 501 Migration Act 1958’. A copy of the Ministerial Direction was attached to the letter. Written submissions on behalf of Mr Roberts were submitted to DIMA by his solicitor, Laurie Levy on 12 December 2000.

18 An Issues Paper was then prepared for the Minister entitled ‘Issues for Consideration for Possible Visa Cancellation under Section 501A of the Migration Act 1958’. Under the heading ‘Immigration history of visa holder (if any)’ the date of visa grant was specified as 11 November 1977. The visa class was identified as K50G Migrant Visa. The stay period was said to be indefinite.

19 On the final page of the Issues Paper setting out decisional options, the Minister signed a decision expressed thus:

‘PART E: DECISION

64. I have considered all relevant matters including (1) an assessment of the Character Test within the meaning of section 501 Migration Act 1958, (2) the Minister’s Direction under section 499 of the Act and Mr Arthur Reginald ROBERTS’ comments, and have decided that:
...

(d) I reasonably suspect that Mr Arthur Reginald ROBERTS does not pass the character test and Mr Arthur Reginald ROBERTS has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501A OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa.

Philip Ruddock
Minister for Immigration and Multicultural Affairs
4^th May 2001’

Notice of the visa cancellation, together with a copy of the Issues Paper and Decisional Record, was sent to Mr Roberts and to his solicitors by a letter dated 9 May 2001. On 8 June 2001, Mr Roberts lodged an application in this Court seeking judicial review of the Minister’s decision.

20 The matter eventually came on for hearing on 27 May 2004 following various delays relating to the securing of legal representation and a postponement pending the determination by the High Court of the constitutional issues relating to the aliens’ power in the case of Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72.

Grounds of Application

21 The grounds of the application as finally amended at the hearing were in the following terms:

‘1 The respondent did not observe the procedures that were required by the Act or Regulations to be observed in connection with the making of the decision: s 476(1)(a).

Particulars

1.1 The respondent failed to provide the applicant with reasons for his decision as required by s 501G(1)(e) of the Act.
1.2 The Department of Immigration and Multicultural and Indigenous Affairs ("DIMIA") document entitled "Issues for Consideration for Possible Visa Cancellation Under Section 501A of the Migration Act 1968" (sic) (Issues Document") together with the notice of visa cancellation by letter dated 9 May 2001 did not state the respondent’s reasons for decision.

2 The purported decision to cancel the applicant’s visa under section 501(2) of the Act was a nullity, the respondent did not cancel the visa held by the applicant and purported to cancel a visa that did not exist; section 476(1)(b).

Particulars

2.1 The applicant has been resident in Australia since first arriving in Australia on 11 November 1977.
2.2 On arrival in Australia on 11 November 1977, the applicant was permitted entry to Australia on a visa described as "K10G(SP)WO88".
2.3 When the applicant last travelled from Australia he was permitted re-entry to Australia on 12 June 1994 on a visa category described as "155".
2.4 The Issues Document describes the applicant’s visa as "K50G Migrant Visa". A letter from the Australian Government Solicitor to the applicant dated 17 February 2004 states that DIMIA has been unable to locate any document which refers to the grant of a "K50G Migrant Visa" to the applicant.
2.5 The respondent purported to exercise the power in s 501A of the Act to cancel "the visa" when the Issues Document before the respondent for consideration described the applicant’s visa as a "K50G Migrant Visa".

3 The purported decision to cancel the applicant’s visa was a decision the respondent did not have the jurisdiction to make: s 476(1)(b).

Particulars

3.1 As a separate pre-condition to the exercise of the jurisdiction to cancel a visa under s 501A, the respondent is required to satisfy himself as to whether the cancellation of the visa is in the national interest. The respondent failed to determine in Part E of the Issues Document that he was so satisfied in this case.

4 The purported decision to cancel the applicant’s visa was not authorised by the Act or the Regulations: s 476(1)(c).

Particulars

4.1 As particularised in paragraphs 1, 2 and 3 herein.


5 The purported decision to cancel the applicant’s visa involved an error of law: s 476(1)(e).

Particulars

5.1 As particularised in paragraph 3 herein.’

Statutory Framework – The Migration Act 1958 - The Cancellation Power

22 Section 501 of the Act, in the relevant parts, provides:

‘(2) The Minister may cancel a visa that has been granted to a person if:

(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
...

(6) For the purpose of this section, a person does not pass the character test if:

(a) the person has a substantial criminal record (as defined by subsection (7));
...

(7) For the purpose of the character test, a person has a substantial criminal record if:

...

(c) the person has been sentenced to a term of imprisonment of 12 months or more.’

Section 500 of the Act provided, in subs (1)(b), that applications may be made to the AAT for review of decisions of a delegate of the Minister under s 501.

23 Section 501A provides:

‘(1) This section applies if:

(a) a delegate of the Minister; or
(b) the Administrative Appeals Tribunal;

makes a decision (the original decision):

(c) to grant a visa to a person as a result of not exercising the power conferred by subsection 501(1) to refuse to grant a visa to the person; or
(d) not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person.

(2) The Minister may set aside the original decision and:

(a) refuse to grant a visa to the person; or
(b) cancel a visa that has been granted to the person;

if;

(c) the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and
(d) the person does not satisfy the Minister that the person passes the character test; and
(e) the Minister is satisfied that the refusal or cancellation is in the national interest.
...

(5) The power under subsection (2) or (3) may only be exercised by the Minister personally.’

24 Notification of a cancellation decision is provided for in s 501G thus:

‘(1) If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B or 501F to:

...

(b) cancel a visa that has been granted to a person;

the Minister must give the person a written notice that:

(c) sets out the decision; and

(d) specifies the provision under which the decision was made and sets out the effect of that provision; and
(e) sets out the reasons (other than non-disclosable information) for the decision;
...

(3) A notice under subsection (1) must be given in the prescribed manner.

(4) A failure to comply with this section in relation to a decision does not affect the validity of the decision.’

Statutory Framework – The Migration Act 1958 – Grounds for Judicial Review

25 The grounds of review in the Federal Court at the relevant time and applicable to this case were those specified in s 476(1) which included:

‘(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;
(b) that the person who purported to make the decision did not have jurisdiction to make the decision;
...
(e) that the decision involved an error of law, being 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;
...
(g) that there was no evidence or other material to justify the making of the decision.

...

(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or
(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.’

Statutory Framework – The Migration Act 1958 Immediately Prior to the 1994 Amendments

26 The Act, as it stood prior to the amendments effected by the Migration Reform Act 1992, provided for the issue of visas and entry permits. Section 4 of that Act defined ‘visa’ as ‘an entry visa or a travel-only visa’. It defined ‘entry permit’ as ‘permission to enter or remain in Australia’.

27 Part 2 of the Act related to the Entry, Presence and Deportation of Non-citizens. It comprised ss 14 to 114. Division 1 of Part 2 was entitled ‘Control of entry into Australia’ and comprised ss 14 to 22. A key provision was s 14:

‘(1) On entering Australia, a non-citizen becomes an illegal entrant unless:

(a) he or she is the holder of a valid entry permit; or
(b) the entry was authorised by section 17;

...

(3) A non-citizen who is the holder of a valid entry permit becomes an illegal entrant if he or she stops being the holder of a valid entry permit while he or she is in Australia.’

There followed provisions relating to the effect of visas. Relevantly these were as follows:

‘16A. The holder of a valid visa may travel to Australia.

16B. A travel-only visa does not entitle its holder to enter Australia or be granted an entry permit.

17(1) An entry visa may be granted to a person who has entered Australia or who is in another country.

17(2) The holder of an entry visa that is in force may enter Australia.

17(3) If the holder of an entry visa leaves Australia while the entry visa is in force, the holder may re-enter Australia if it is still in force.’

The other subsections of s 17 are not relevant for present purposes. It will be immediately seen however that the legal effect of an entry visa under s 17 was limited to entry into Australia and did not extend to permit a stay in Australia. This was dealt with in s 18 which provided, inter alia:

‘(1) While the holder of an entry visa is not in Australia, the entry visa has effect as if it were a travel-only visa until the holder enters Australia (whether or not the holder has previously entered Australia while the entry visa was in force).

(2) When the holder of an entry visa enters or re-enters Australia, the entry visa has effect as if it were an entry permit.

(3) If an entry visa is granted in Australia to a person who has entered Australia, the entry visa has effect, when granted, as if it were an entry permit.

(4) An entry visa has effect subject to any limitation on the period during which the holder is authorised to travel to or remain in Australia, and to any conditions, to which the entry visa is subject.’

28 Division 2 of Pt 2 related to visas. It provided for their grant and refusal (s 24), conferred upon the Minister an absolute discretion to cancel visas (s 26) and authorise regulations relating to their grant and refusal and for the creation of different classes of visas and for prescribed criteria in relation to each class (s 23).

29 Entry permits were covered in Div 3 of Pt 2. There were, as for visas, provisions relating to the grant or refusal of entry permits (s 34) and their cancellation (s 35) and for the making of regulations in relation to them (s 33). The limitation of entry permits to persons physically present in Australia after entry was provided for in ss 43 and 46:

‘43. An entry permit shall not be granted to a person before he or she enters Australia unless the person:

(a) is the holder of a valid visa; or
(b) is exempted from the operation of section 76 by an instrument under subsection 106(1).

...

46. An entry permit shall not be granted to a person unless the person is physically present in Australia.’

30 The term ‘permanent entry permit’ was defined in s 4 as follows:

‘‘permanent entry permit’ means an entry permit that is not subject to any limitation as to the time the holder is authorised to remain in Australia.’

Statutory Framework – The Migration Reform Act 1992 and The Migration Reform (Transitional Provisions) Regulations 1994

31 By the Migration Reform Act the entry permit system was abolished in favour of a visa only system for regulating travel to, entry into, and stay within Australia for non-citizens. The provisions of the Migration Reform Act relevant to that purpose came into effect on 1 September 1994. Permission to non-citizens to travel to, enter and remain in Australia thereafter, derived from visas granted by the Minister pursuant to s 24 of the Act. Persons holding entry permits became, by force of transitional regulations, the holders of designated classes of visas. Mr Roberts was the holder of a permanent entry permit at 1 September 1994.

32 Regulation 4 of the Migration Reform (Transitional Provisions) Regulations 1994 relevantly provided:

‘(1) Subject to regulation 5, if, immediately before 1 September 1994, a non-citizen was in Australia as the holder of a permanent entry permit, that entry permit continues in effect on and after 1 September 1994 as a transitional (permanent) visa that permits the holder to remain indefinitely in Australia.’

As a result, Mr Roberts’ permanent entry permit continued in effect on and after 1 September 1994 as a Transitional (Permanent) Visa. This was the class of visa which he held at the time that the Minister made his decision.

Ground 1 - The Failure to Give Reasons for the Decision

33 The first ground of review asserts a failure by the Minister to comply with the requirement, imposed by s 501G(1)(e), that he give to Mr Roberts a written notice setting out the reasons for the decision to cancel his visa.

34 It was accepted by counsel for the Minister in his written submissions that there was no written notice setting out the reasons for decision as required by s 501G(1)(e) unless it could be said that the signed Decisional Record, together with the Issues Paper, could be read as sufficient compliance with that requirement. The notice sent to Mr Roberts told him that his visa had been cancelled because he had failed the character test because he had been sentenced to a term of imprisonment in excess of twelve months. It stated that the Issues Paper and Decisional Record enclosed with it ‘sets out the reasons for the decision’. It was accepted by counsel that the notice set out factors to which the Minister’s attention had been directed, but generally referred only to findings which were open to the Minister.

35 The question whether the Issues Paper enclosed with the Minister’s choice of decision met the requirements of s 501G(1)(e) is a matter of fact which depends upon the content of the document – see Minister for Immigration, Multicultural and Indigenous Affairs Ex parte Palme [2003] HCA 56; (2003) 201 ALR 327 at 335-6 [40] and also Minister for Immigration and Multicultural Affairs v W157/00A [2002] FCAFC 281; (2002) 125 FCR 433 at [52] and Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2003] FCA 1263; (2003) 203 ALR 33 at 43-46 and cases there cited. As I observed in Nezovic at [44] a departmental issues paper could constitute a statement of reasons if it traced out one path of reasoning to a single conclusion which, it could be inferred, was adopted by the Minister on the basis of that reasoning. Alternatively, it might identify two logical pathways, one leading to cancellation and the other to a decision not to cancel. If no other basis for the decision taken was open on the evidence then the Issues Paper, coupled with the decisional record, might arguably constitute a statement of reasons.

36 The present case does not fall into these categories. The Issues Paper did not identify a line of reasoning which could be identified as the line of reasoning adopted by the Minister. Various factors relevant to the Minister’s discretion were mentioned in the Paper including the protection of the Australian community, the risk of recidivism, general deterrence, the ‘expectations of the Australian community’ and the best interests of Mr Roberts’ son Kai. It was not possible to derive from the Issues Paper, read in conjunction with the Decisional Record, the way in which the Minister assessed these factors in the exercise of his discretion. I am satisfied therefore that the provision of the Issues Paper, together with the Decisional Record, did not comply with the requirements of s 501G(1)(e) of the Act that the Minister give to Mr Roberts a written notice setting out the reasons for his decision. The question that then arises is whether the Minister’s failure to comply with the requirements of s 501G(1)(e) constituted, in the language of s 476(1)(a), a failure to observe procedures required by the Act to be observed in connection with the making of the decision.

37 In W157/00A v Minister for Immigration and Multicultural Affairs (2001) 190 ALR 55, Lee J observed at [62] that compliance by the Minister with the requirements of s 501G(1)(e) was more than a technical duty. His Honour said:

‘It was a procedure the Act required the Minister to observe to ensure that the Minister, by being subjected to the discipline of setting out in writing the reasons for his decision, would have regard to relevant considerations and exclude irrelevant considerations and, importantly, would not make the decision arbitrarily.’

His Honour held compliance with s 501G(1)(e) to be a procedure required by the Act to be observed in connection with the making of a decision to cancel a visa under s 501. In this respect however he was overruled by the Full Court. In Minister for Immigration and Multicultural Affairs v W157/00A, Branson J held that s 501G(1) required the Minister after the decision to cancel the visa was made, to notify the person of a number of things including the reasons for decision. Her Honour contrasted the requirements of s 501G and those imposed upon the Refugee Review Tribunal by s 430 to prepare a written statement recording its decision before the decision was handed down (at [61]-[62]). Her Honour concluded (at [63]):

‘... the failure of the Minister to give the respondent the notice required by s 501G(1)(e) did not of itself enliven the ground of review identified in s 476(1)(a) of the Act.’

Goldberg and Allsop JJ agreed with Branson J, albeit each published separate judgments.

38 In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme, judgment in which was handed down in October 2003, Gleeson CJ, Gummow and Heydon JJ said (at [43]):

"It was decided by Lee J in W157/00A v Minister for Immigration and Multicultural Affairs that the failure by the respondent to give a written notice setting out the reasons for the decision as required by s 501G(1)(e) attracted review by the Federal Court under what was then s 476 of the Act. This was because there had been a failure to observe "procedures that were required by [the] Act ... to be observed in connection with the making of the decision" (emphasis added). That may be conceded but it does not address the submission that such a failure also taints that decision with jurisdictional error so as to attract s 75(v) of the Constitution.’

Their Honours were not there considering the application of s 476. They were dealing with an application for constitutional writs under s 75(v) of the Constitution. It is likely that the statement ‘that may be conceded’ meant conceded for the sake of argument. In any event it was obiter and whether or not I am bound to apply what the Full Court said in W157/00A about the interaction of s 501G(1)(e) and the former s 476(1)(a) I should apply it. For these reasons, in my opinion, the first ground of review cannot succeed. If I were wrong in that conclusion there would still be a question whether any useful remedy could be granted based on a procedural failure which could not constitute a jurisdictional error having regard to the provisions of s 501G(4). The best outcome that could be hoped for, from Mr Roberts’ perspective, would be an order that the Minister provide reasons as required by the section. The utility of such an order having regard to the time that has elapsed since the decision was made is very doubtful.

Ground 2 - Whether the Minister Cancelled the Visa Held by the Applicant

39 The only reference in the Issues Paper to the class of visa held by Mr Roberts appeared on the first page under the heading ‘Immigration history of visa holder (if any)’. Under that heading was the following:

‘Date of Visa Grant: 11 November 1977
Visa Class: K50G Migrant Visa
Stay Period of visa: Indefinitely’

Beneath these entries appeared a list of Mr Roberts ‘Visits to Australia’. This list set out the successive dates of his entries to and departures from Australia. The last item was ‘12 June 1994 – present’. The Issues Paper, in this connection, referred to Attachment 1. Attachment 1 comprised a series of printouts headed ‘Movement Details’ which related to Mr Roberts. For each entry to and departure from Australia set out in the printouts there was shown a visa number and category. The visa number shown for Mr Roberts from 23 December 1993 until 12 June 1994 was 5125009774 and the category 155P000. The immediately preceding visa was numbered 5110072761 designated category R and issued in the period from 13 June 1992 to 20 June 1993. From 14 December 1989 to 18 March 1990 the visa number was the same but the category was designated ‘Visa Cnd:R’. This was evidently a reference to a set of visa conditions. From 28 December 1986 to 29 December 1988, the number was 30712076 and the category designation again ‘Visa Cnd:R’.

40 As appears from a letter dated 17 February 2004 from the Australian Government Solicitor to Mr Roberts the Department was unable to locate any document evidencing the grant to him of a K50G Migrant Visa on 11 November 1977. His incoming passenger card at that time, which was exhibited to the affidavit of Nathan Collins sworn 13 May 2004, referred to a visa with conditions designated K10G(SP) W088. This, according to the letter, suggested he had entered Australia accompanied by his spouse. The code K50G referred to a visa granted to a principal applicant who was unsponsored but accompanied to Australia by a person specified in the authority.

41 I accept that at the time of his entry into Australia on 12 June 1994 Mr Roberts was the holder of a Subclass 155 resident return visa as submitted by counsel for the Minister. This accords with the category number on his incoming passenger card, the movement details printout and the nature of his movements at that time. He was clearly a resident of Australia, returning to Australia. It appears likely that the visa Mr Roberts held at the time of his re-entry to Australia in 1994 took effect upon that re-entry as if it were an entry permit by virtue of s 18(2) of the Act as it then stood. Notwithstanding this possibility, the card was stamped with an entry permit endorsed as though it were a distinct grant of a permit which incorporated by reference the conditions of the entry visa. Whatever the true position, which was not addressed in the submissions, counsel for the Minister accepted, in oral submissions at the hearing on 27 May 2004, that what Mr Roberts had following his re-entry into Australia was a permanent entry permit. From 1 September 1994 that permanent entry permit was taken to be a Transitional (Permanent) Visa pursuant to the Migration Reform (Transitional Provisions) Regulations. It permitted Mr Roberts to remain in Australia indefinitely.

42 The Issues Paper submitted to the Minister, made no reference to a Transitional (Permanent) Visa. It conveyed the false impression, on the face of it, that Mr Roberts had been granted a K50G Migrant Visa on 11 November 1977, which permitted him to stay indefinitely in Australia. This impression could, no doubt, have been dispelled by a close examination of the movements detail records which were Attachment 1 to the Issues Paper. In my opinion however the probability is that, given the content of that document and the absence of reference to any other visa, the Minister was led to believe that he was considering the cancellation of a ‘K50G Migrant Visa’. He was not directed to the proposition that what he was being asked to cancel was either a Subclass 155 Resident Visa taking effect, under s 18 of the Act, as a permanent entry permit, taken by virtue of the Regulations, to be a Transitional (Permanent) Visa from 1 September 1994 or a separately granted permanent entry permit taking effect as a Transitional (Permanent) Visa from 1 September 1994. Counsel for the Minister in argument said that it was the fact that Mr Roberts had a permanent entry permit from June 1994 which presumably was still in operation as at 1 September 1994 that made him, as it were, the deemed holder of a Transitional (Permanent) Visa. Counsel disclaimed any reliance on the proposition that Mr Roberts held a permanent return visa immediately before 1 September 1994.

43 Counsel for Mr Roberts submitted that in exercising the significant power that he or she has under s 501A the Minister should have no doubt as to the class of visa being cancelled. It was submitted that he cannot cancel a visa that does not exist.

44 In Minister for Immigration, Multicultural and Indigenous Affairs v Schwart [2003] FCAFC 229, the respondent, like Mr Roberts, was taken to be the holder of a Transitional (Permanent) Visa from 1 September 1994. Cancellation of his visa in that case fell for consideration under s 501(2) of the Migration Act 1958. The Issues Paper made reference, in its heading, to the possible cancellation of a Subclass 155-5 year resident return visa.

45 The question for the Full Court was whether, by signing the decision record page, the Minister cancelled the only visa held by the respondent or whether he purported to cancel a non-existent visa in Subclass 155. The Court held that on a literal reading of the document it was clear that the issue for consideration by the Minister involved the possible cancellation of a Subclass 155-5 year return visa. The respondent was never the holder of such a visa and the Minister’s purported decision was a nullity. The Court accepted, at [32], that the result might appear technical. However where the entitlement of an individual to remain in Australia was in issue in the making of a decision the Australian community was entitled to expect that the documentation in relation to the making of such a significant decision would be prepared with care. The Court went on (at [33]):

‘It is not possible to be certain that the Minister understood, when signing the Decision Page, what he was doing. It may well be that he was well aware that the respondent had been resident in Australia for eighteen years and had, under the terms of a visa held by him, a right of indefinite residence. However, at no stage does the Memorandum refer to a ‘transitional (permanent) visa’ that the respondent is deemed to hold pursuant to reg 4(1) of the Transitional Regulations. If the Minister exercises the important discretionary power conferred by s 501, there should be no doubt that that is what he is doing.’

46 The question in this case, as in the Schwart case, turns upon the construction of the Issues Paper and the Decisional Record. There is nothing in the Issues Paper or its attachments to inform the Minister of the fact that the visa held by Mr Roberts was a Transitional (Permanent) Visa. In my opinion the document gave the misleading impression that Mr Roberts had been, since 1977, the holder of a K50G Migrant Visa which entitled him to stay indefinitely in Australia. It is not sufficient to say that the Minister was asked to cancel whatever visa was held by Mr Roberts and that it was sufficient that he knew it entitled him to stay indefinitely in Australia. The cancellation of a visa under s 501A is a very serious step. Upon cancellation the former visa holder becomes an unlawful non-citizen liable to be taken into detention under s 189 of the Act. While that may have been academic for Mr Roberts for so long as he was serving his sentence, it would not have been academic upon his release on parole.

47 There is another dimension to the failure of the Issues Paper to direct the Minister’s mind to the particular visa held by Mr Roberts. The power conferred by s 501A(2) is to set aside the decision of the AAT, the original decision, and to ‘cancel a visa that has been granted to a person’. The setting aside of the decision of the AAT not to cancel a person’s visa is, as a matter of statutory construction, one of two alternative necessary conditions for the exercise of the power to cancel a visa set out at s 501A(2). In this case the AAT set aside the delegate’s decision to cancel Mr Roberts’ visa. The class of visa described in the delegate’s decision was a visa class BF155 granted on 22 December 1993 and permitting an indefinite stay in Australia. The AAT substituted for the delegate’s decision its own decision that although Mr Roberts did not pass the character test ‘his Subclass 155 (Return Resident) visa should not be cancelled under s 501(2) of the Act’. That decision was never set aside by the Minister. The Court was given no information about the nature of a BF155 visa. It may be that it took effect by virtue of s 18 as a permanent entry permit upon Mr Roberts’ re-entry into Australia in June 1994. And it may be that the deemed permanent entry permit was taken to be a Transitional (Permanent) Visa from 1 September 1994. These matters were not addressed in the Issues Paper.

48 The process surrounding the cancellation of Mr Roberts’ visa seems to have been clouded in confusion from beginning to end including possibly the decisions of the delegate and the AAT. If the decision of the AAT were legally effective then the Minister did not set it aside as required by s 501A. If it were ineffectively directed to a non-existent visa then there was no ‘original decision’ to attract the application of s 501A as required by s 501A(1).

49 In my opinion, on the second ground, Mr Roberts has made out that the Minister failed to address the question he was required to address by s 501A in that he appears to have purported to cancel a non-existent visa. Moreover, although it was not advanced as part of the argument made on behalf of Mr Roberts, it appears that a necessary condition of the exercise of the Minister’s power may not have been fulfilled, either because he failed to set aside the preceding decision of the AAT or because the AAT’s decision itself was a nullity. This may have flowed from the fact that the Decisional Options page which made no reference to either national interest or to the AAT decision, was more appropriate to a first instance s 501 cancellation than it was to the decisions required to be taken under s 501A.

Ground 3 - Whether the Minister Failed to Consider the National Interests

50 It is a necessary condition of the exercise of the Minister’s power to cancel a visa under s 501A(2) that he is satisfied that cancellation is in the national interest. The third ground of Mr Roberts’ application relied upon the absence of any reference to national interest in the Decisional Record signed by the Minister or in the letter giving notice of the cancellation to Mr Roberts. It was submitted that there was therefore no evidence of a finding by the Minister that he had considered the national interest which was a condition precedent to the exercise of the cancellation power.

51 Counsel for the Minister submitted that in spite of the absence from the Decisional Record of a reference to the national interest there was no doubt that the Minister was purporting to exercise the power conferred upon him by s 501A.

52 The national interest question figured prominently in the discussion presented to the Minister in the Issues Paper. The requirements of s 501A in that respect were pointed out with the observation at par 11 of the Paper that:

‘Section 501A allows you to set aside a decision of the delegate or the Administrative Appeals Tribunal and then to cancel or refuse the visa if, amongst other things, you are satisfied that the cancellation or refusal is in the national interest.’

There followed discussion of the concept of national interest and of what was said in Re Paterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391. In pars 12 and 13 of the Issues Paper it was said:

‘12. It is open to you to take the view that the Australian Community has every reason to send a strong deterrent message to any non-citizen who has a substantial criminal record or who is contemplating engaging in immigration malpractice or and that, if detected, no further reward will be given to the visa applicant in question in fulfilling their aim and ambition of becoming a resident of this country. To do otherwise would cast doubt upon the integrity and international reputation of Australia’s legitimate immigration program.

13. It is open to you to find that it is in the national interest that Mr Arthur ROBERTS’ visa is cancelled.’

53 In my opinion, although the Decisional Record did not in terms refer to the national interest factor, there can be little doubt, having regard to the Issues Paper, that the Minister made the requisite finding that cancellation of Mr Roberts’ visa was in the national interest. In my opinion the third ground of the application for review therefore fails.

Grounds 4 and 5

54 The remaining grounds, 4 and 5, rely upon the matters set out in the first three grounds albeit they invoke different paragraphs of s 476. They stand or fall with the first three grounds.

Conclusion

55 For the preceding reasons, the application succeeds. The Minister’s decision will be set aside and the matter remitted for reconsideration according to law. In the event that there are any complications arising out of the class of visa identified by the delegate and the AAT as the subject of the delegate’s original cancellation decision, I will allow liberty to apply for further orders within fourteen days.

I certify that the preceding fifty four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:
Dated: 9 June 2004

Counsel for the Applicant:	Ms LB Price (Pro Bono)
Solicitors for the Applicant:	Corrs Chambers Westgarth
Counsel for the Respondent:	Mr JD Allanson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 May 2004
Date of Judgment:	9 June 2004