Gilbert v Minister for Immigration and Citizenship [2008] FCA 16 (23 January 2008)

Last Updated: 24 January 2008

FEDERAL COURT OF AUSTRALIA

Gilbert v Minister for Immigration and Citizenship [2008] FCA 16

IMMIGRATION – visas – absorbed person visa – transitional (permanent) visa held concurrently – visa cancelled by Minister due to failure to pass character test – whether Minister cancelled absorbed person visa or transitional (permanent) visa – whether Minister had jurisdiction to cancel visa – whether Minister took into account irrelevant considerations in exercising discretion to cancel visa
Held: application dismissed – absorbed person visa cancelled and consequently transitional (permanent) visa cancelled – no irrelevant considerations taken into account



Migration Act 1958 (Cth) ss 6, 6(8), 501(2), 501(6), 501F(3)
Migration Reform Act 1992 (Cth) s 34(2)
Migration Reform (Transitional Provisions) Regulations 1994 (Cth) reg 4



Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236, referred to
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566, applied
Hall v Minister for Immigration and Multicultural Affairs [2000] FCA 415; (2000) 97 FCR 387, referred to
Andary v Minister for Immigration and Multicultural Affairs [2001] FCA 1544, referred to








ROY JOSEPH GILBERT v MINISTER FOR IMMIGRATION AND CITIZENSHIP

VID 844 OF 2007








MARSHALL J
23 JANUARY 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 844 OF 2007

BETWEEN:	ROY JOSEPH GILBERT Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	23 JANUARY 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant pay the respondent’s costs of the proceeding.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 844 OF 2007

BETWEEN:	ROY JOSEPH GILBERT Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	MARSHALL J
DATE:	23 JANUARY 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 Mr Roy Gilbert came to Australia with his parents and siblings from England when he was eight years old. Since then he has accrued a substantial criminal record. He had not become an Australian citizen when, on 7 June 2007, the then Minister for Immigration and Citizenship made a decision which placed Mr Gilbert in severe jeopardy of being removed from Australia. Mr Gilbert now challenges the lawfulness of that decision.

2 The issues for determination in this proceeding are:

• What precisely did the Minister do with respect to Mr Gilbert in his 7 June 2007 decision?

• Was the visa cancelled by the Minister one which was capable of being cancelled in the circumstances?

• Was the cancellation decision affected by irrelevant considerations?

Background to Mr Gilbert’s visa status

3 Mr Gilbert arrived in Australia in August 1981. On arrival in Australia, pursuant to the provisions of s 6 of the Migration Act 1958 (Cth) ("the Act"), as it then stood, Mr Gilbert’s parents were granted entry permits to enter Australia. Under s 6(8), as their child, Mr Gilbert was deemed to be included in the entry permit of one of his parents.

4 The Migration Reform Act 1992 (Cth) and the Migration Reform (Transitional Provisions) Regulations 1994 ("the Transitional Regulations"), effected changes to the basis upon which non-citizens who held entry permits were entitled to remain in Australia.

5 Relevantly, reg 4 of the Transitional Regulations states that:

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 ... as a transitional (permanent) visa and permits the holder to remain indefinitely in Australia. (Emphasis added.)

6 The Migration Reform Act also created another form of visa known as an "absorbed person visa". Pursuant to s 34(2) of the Act, a person who was in Australia on 2 April 1984, and who before that day "ceased to be an immigrant" was "taken to have been granted an absorbed person visa on 1 September 1994" (emphasis added).

7 As at 1 September 1994, Mr Gilbert was:

• the holder of a transitional (permanent) visa; and

• the grantee of an absorbed person visa.

The 7 June 2007 decision

8 By letter dated 12 September 2006 a delegate of the Minister wrote to Mr Gilbert. The heading of the letter was:

NOTICE OF INTENTION TO CONSIDER CANCELLATION OF YOUR ABSORBED PERSON VISA UNDER SUBSECTION 501(2) OF THE MIGRATION ACT 1958. (Emphasis added.)

The first paragraph said:

The purpose of this notice is to advise you that consideration will be given to whether your absorbed person visa may be cancelled for character reasons, and if it liable to cancellation, whether it should be cancelled.

9 The letter went on to record that Mr Gilbert was "currently the holder of a transitional (permanent) visa". Somewhat confusingly, the letter then said: "Consideration has also been given to whether you should be taken to hold an absorbed person visa." After traversing s 34(2) of the Act, the letter then said: "It has been determined that you would have been granted an absorbed person visa on 1 September 1994 and that you continue to hold that visa now." Under the heading, "Possible visa cancellation for character reasons", the letter said:

Consideration is to be given whether your absorbed person visa may be cancelled under s 501(2) of the Act and, if it is liable to cancellation, whether it should be cancelled.

...

If a decision is made to cancel your absorbed person visa, s 501F(3) of the Act provides that your transitional (permanent) visa must also be taken to have cancelled.

10 The letter then discussed the character test referred to in s 501(6) and under the heading, "Should your visa be cancelled?" it said:

If the Minister or a delegate makes a determination that he or she reasonably suspects that you do not pass the character test, and you fail to satisfy him or her that you do pass the character test, the Minister or the delegate will then consider whether your absorbed person visa should be cancelled. (Emphasis added.)

Later on, under the heading, "Your status if your absorbed person visa is cancelled", the letter said: "As indicated above, if a decision is made to cancel your absorbed person visa, your transitional (permanent) visa will also be taken to be cancelled."

11 Another delegate of the Minister wrote to Mr Gilbert on 7 December 2006. The first paragraph of that letter said:

On 12 September 2006 you were notified of the intention to consider cancelling your Transitional Permanent Visa and an Absorbed Person visa under subsection 501(2) of the Migration Act 1958 (the Act). A copy of the notice is attached.

12 That letter was loosely worded. On 12 September 2006, Mr Gilbert was notified of the Minister’s intention to cancel his absorbed person visa, which would consequently have the effect of cancelling the transitional permanent visa pursuant to s 501F(3). The inaccurate description contained in the 7 December 2006 letter sowed the seeds of confusion which led to competing contentions as to which visa the Minister ultimately cancelled.

13 Mr Gilbert replied to the delegate’s letter of 7 December 2006. The first sentence of the undated reply letter said:

I write in regards to your letter sent by facsimile on December 7 and our subsequent telephone conversation on Thursday the 14^th of December, regarding your notice of intention to consider cancellation of my Absorbed Person Visa under subsection 501(2) of the Migration Act 1958. (Emphasis added.)

14 On 31 January 2007, the delegate who wrote the 7 December 2007 letter wrote to Mr Gilbert again using the same opening to that letter as she did on 7 December 2006, referring to notification of an intention to consider cancelling his "Transitional Permanent Visa and an Absorbed Person Visa". The 31 January 2007 letter advised Mr Gilbert of the existence of a police report concerning him. A further letter to Mr Gilbert on 1 February 2007 extending the date to respond to the request in the previous letter repeated the misleading first paragraph, as did another letter sent on 4 April 2007.

15 On 7 June 2007 the Minister signed the "decision" section of a document entitled, "Issues for consideration of possible cancellation of visa under s 501(2) of the Migration Act 1958". The first paragraph of the issues document stated:

PURPOSE

1. To seek your decisions on:

• Whether Mr GILBERT passes the character test in s 501(6) of the Migration Act; and

• If not, whether his absorbed person visa should be cancelled pursuant to s 501(2) of the Migration Act. (Emphasis added.)

16 Paragraphs 2 and 3 of the issues document sowed some further seeds of confusion. Under the heading, "the nature of the visa held by Mr GILBERT", they said:

2. Mr GILBERT was granted permanent residence on arrival in Australia on 28 August 1981. His permanent residence status was deemed to continue to be in effect on and after 1 September 1994 under the Migration Reform (Transitional Provisions) Regulations, by way of a transitional (permanent) visa. This permanent visa allows Mr GILBERT to remain in Australia indefinitely. (Original emphasis.)

3. If you decide to cancel the above visa, the effect of subsection 501F(3) of the Act is that any other visas (except a protection visa) which may be held by Mr GILBERT will also be cancelled automatically.

17 At the conclusion or decision section of the issues document, the former Minister adopted the following statement, appearing there as paragraph 59, as follows:

I reasonably suspect Mr GILBERT does not pass the character test and Mr GILBERT has not satisfied me that he passes the character test. I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL Mr GILBERT’s VISA, so I hereby cancel his visa.

18 The former Minister’s statement made at paragraph 59 of the issues document and set out above related to the question posed for him in the "purpose" section of the issues document, that is, whether Mr Gilbert’s absorbed person visa should be cancelled pursuant to s 501(2) of the Act.

19 Paragraph 59 was set out as an alternative to paragraph 58, as indicated by the word "or" between the two paragraphs. The deleted paragraph 58 read:

I reasonably suspect that Mr GILBERT does not pass the character test and Mr GILBERT has not satisfied me that he passes the character test BUT I have decided NOT to exercise my discretion under subsection 501(2) of the Act to cancel Mr GILBERT’s absorbed person visa. (Emphasis added.)

20 Read as a whole, the issues document, and the decision section contained in it should be seen as a document in which the Minister is provided with material on which to decide whether Mr Gilbert’s absorbed person visa should be cancelled and makes a decision to cancel that visa.

21 The Minister signed a "statement of reasons" for the cancellation of Mr Gilbert’s absorbed person visa. Somewhat confusingly the reasons, under the heading of "Other Considerations", state: "On 31 August 2006, it was determined that Mr GILBERT is likely to hold an absorbed person visa in addition to his transitional (permanent) visa."

22 However, in the context of the provision of reasons for cancellation of an absorbed person’s visa it is irrelevant to consider the date on which the Minister’s delegate understood the effect of s 34(2) with respect to Mr Gilbert.

23 The statement of reasons concluded by saying: "... I decided to exercise my discretion to cancel Mr GILBERT’s visa under s 501(2)." While the paragraph commencing, "On 31 August 2006", referred to at [21] above, gives some cause for confusion, it must be remembered that the Minister’s actual decision was to cancel the absorbed person visa and his reasons must be read in that context.

24 On 20 June 2007, the Minister’s delegate, being the same delegate who corresponded with Mr Gilbert apart from the initial letter of 12 September 2006, wrote a misleading letter to Mr Gilbert. It commenced as follows:

I refer to the Notice of Intention to Consider Cancellation of your Transitional Permanent visa dated 12 September 2006, that you were taken to have received on 21 September 2006, which informed you that the then Minister for Immigration and Multicultural Affairs intended to consider whether your Transitional Permanent visa may be cancelled under subsection 501(2) of the Migration Act 1958 (the Act) and, if it was liable to cancellation, whether it should be cancelled.

25 That letter misdescribed what the 12 September 2006 letter said and misdescribed what the Minister did. It aggravated the confusing situation that had been created by the delegate’s previous confusing correspondence and the bizarre reference in the Minister’s reasons to when it was considered that an absorbed person visa was held by Mr Gilbert.

26 These unfortunate misdescriptions and inexact use of language by the delegate and her Minister resulted in the complaint being made by Mr Gilbert’s counsel that it was the transitional (permanent) visa that was cancelled and, as a consequence, the absorbed person visa was cancelled rather than the other way around.

27 The significance of which visa was cancelled arises from the terms of s 501(2) and the use of the word "granted". It provides:

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.

28 Under s 501(6) a person does not pass the character test if he or she has a substantial criminal record. It is not in dispute that Mr Gilbert has a substantial criminal record. In Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236 at 246 a Full Court, by way of obiter dicta, observed that the power conferred on the Minister to cancel a visa only applies to visas that have been granted to a person. Where a visa has been granted to a person, s 501F(3) operates so that any other visa held by that person is cancelled. So when an absorbed person visa is cancelled the transitional (permanent) visa held by that person is also cancelled. However, the Full Court considered in Moore that that process could not operate in reverse. That is because, so it said, the transitional (permanent) visa is a visa which is not granted or deemed to be granted to a person but is held by a person as a result of the operation of the Transitional Regulations.

29 Contrary views to those contained in Moore in the above respect, have been expressed in Hall v Minister for Immigration and Multicultural Affairs [2000] FCA 415; (2000) 97 FCR 387 (per Finkelstein J) and Andary v Minister for Immigration and Multicultural Affairs [2001] FCA 1544 (per Dowsett J).

30 It is not necessary for me to express a preference in respect of the two competing approaches. That is because I consider that, in the current circumstances, the issue does not require determination. The better view is that the Minister’s decision on 7 June 2007 was that Mr Gilbert’s absorbed person visa was cancelled. That is especially clear from the "purpose" of the issues document which specifically seeks a decision on whether to cancel the absorbed person visa. It was a visa which "is taken to have been granted" to him in accordance with s 34(2) of the Act.

31 It is not disputed that if the Court forms the view that the Minister cancelled the absorbed person visa, as a consequence of that cancellation, s 501F(3) has the effect that the transitional (permanent) visa is also cancelled.

32 For the foregoing reasons the Court considers that the Minister cancelled Mr Gilbert’s absorbed person visa on 7 June 2007. It rejects the contention that the subject of the Minister’s decision was the cancellation of the transitional (permanent) visa. Therefore, the only remaining basis upon which that decision may be impugned is that it was made after the Minister allegedly took into account irrelevant considerations in the exercise of his discretion whether or not to remove Mr Gilbert from Australia. It is that topic which the Court now considers.

Irrelevant considerations

33 The remaining live grounds of the application (being those in paragraphs 1(a) and (c)) of the amended application are:

The Respondent acted in excess of the jurisdiction conferred by sub-ss. 501(2) & 501(6)(a) of the Migration Act 1958 or alternatively failed to exercise that jurisdiction, by taking into consideration matters which were beyond the scope of the exercise of that power, namely the contents of a report from Victoria Police dated 18 July 2006 in which:

(a) the criminal history of the Applicant was inaccurately presented;

...

(c) it was alleged that the Applicant had committed other offences which were not subject of any charges or convictions.

34 The issues documents refer to a police report dated 18 July 2006 from Detective Senior Constable E. Bennett. Counsel referred to it as the "Bennett report".

35 Counsel for Mr Gilbert submitted that the Bennett report inaccurately describes Mr Gilbert’s criminal history, by referring to convictions for offences of criminal damage by fire. He contended that Mr Gilbert was dealt with for that offence without the recording of a conviction. It was said that that occurred in the Childrens Court in 1988 but that reading the Bennett report would leave one with the impression that Mr Gilbert had multiple convictions for arson in the adult criminal justice system.

36 Counsel for the respondent submitted that the Bennett report does not use the word "arson" and that a fair reading of it does not suggest that Mr Gilbert has multiple convictions for causing damage by fire.

37 I agree with the submissions of counsel for the respondent that paragraph 2 of the Bennett report does not suggest multiple offences of "Criminal Damage by Fire" but that the reference to "convictions" is one intended to encompass the various offences referred to. This can be seen by a fair reading of the paragraph which says:

Gilbert has an extensive criminal history and has prior convictions for Burglary, Theft, Theft of Motor Vehicle, Criminal Damage, Possess Property being Proceeds of Crime, Criminal Damage by Fire, assault related offences, firearm related offences and driving related offences. GILBERT has even been convicted of offences against the Corrections (Police Goals) Regulations whilst on remand in police cells.

38 Mr Gilbert faced a charge of criminal damage by fire in the Childrens Court. No conviction was recorded against him in respect of that charge. However, reference in the Bennett report to a conviction for criminal damage by fire, albeit inaccurate, did not affect the Minister’s decision. That is because the issues document does not refer to any conviction for the offence of criminal damage by fire. More importantly, the Minister’s statement of reasons, at paragraph 1, set out a list of charges faced by Mr Gilbert in the Heidelberg Magistrates Court on 20 June 2006, none of which concern arson. In addition, paragraph 2 of the Minister’s reasons refers to burglary and theft charges heard at Frankston Magistrates Court on 9 August 2006. The offences referred to at paragraph 16 of the Minister’s reasons, which he describes as "very serious", in context, are those set out in the first two paragraphs of the reasons. When considering the risk of recidivism, the Minister’s reasons only considered Mr Gilbert’s recent criminal history. The Childrens Court matter referred to above, occurred in 1988.

39 The ground for review pleaded at paragraph 1(a) of the application is not made out on the material contained in the issues paper, the Bennett report or the Minister’s statement of reasons.

40 Counsel for Mr Gilbert also submitted that the former Minister took into account "uncharged allegations" in the Bennett report. This submission is beside the point. The former Minister cancelled the absorbed person visa because Mr Gilbert failed to pass the character test as a consequence of the undisputed fact that he had a substantial criminal record. Whether Mr Gilbert had committed uncharged acts cannot have contributed to determining whether he had a substantial criminal record.

41 The "criminal record" can only record charged acts where the person concerned has been found guilty. Even so, the Minister is entitled, in deciding whether or not to cancel the visa of a person who he suspects does not pass the character test, to take into account various matters in the exercise of his discretion. As counsel for the respondent submitted, once s 501(2) is engaged, the considerations relevant to the exercise of the discretion are very wide, see Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at 606, per Heydon and Crennan JJ where their Honours said:

Parliament has left it to the Minister to decide the matters which are relevant to whether a person who fails the character test should be permitted to remain in Australia. Considerations relevant to the exercise of the power depend on the nature, scope and purpose of the power, understood in its context in the Act. As Ministerial Direction No 21 makes clear, the Minister considers that two of the factors relevant to the exercise of the discretion are related to the protection of the Australian community and the expectations of the community. (Emphasis added.)

42 It was, at least, open to the Minister to take into account uncharged acts. Such matters may be relevant to the risk of Mr Gilbert re-offending in the future.

43 Having regard to the foregoing it is appropriate to order that the application is dismissed and that the applicant pay the respondent’s costs of the proceeding.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated: 23 January 2008

Counsel for the Applicant:	Mr G Hughan
Solicitor for the Applicant:	Holding Redlich
Counsel for the Respondent:	Dr S Donaghue
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 December 2007
Date of Judgment:	23 January 2008