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Federal Court of Australia - Full Court Decisions |
Last Updated: 17 July 2002
Madafferi v Minister for Immigration & Multicultural Affairs
MIGRATION - judicial review - ministerial setting aside of Administrative Appeals Tribunal decision - refusal of visa - character test - national interest - whether AAT decision in category subject to Ministerial power - retrospective amendment to redefine category - effect of amendment - no evidence ground - national interest - whether too narrowly based on character test outcome - government policy - whether discretion fettered - nature of power - whether preliminary consideration required on whether power to be exercised.
Migration Act 1958 (Cth), s 501A
Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth)
Administrative Appeals Tribunal Act 1975, s 54
Lam v Minister for Immigration and Multicultural Affairs [2002] FCA 175, considered
Lam v Minister for Immigration and Multicultural Affairs [2000] FCA 1226; (2000) 104 FCR 454, considered
CDJ v VAJ [1998] HCA 76; (1998) 197 CLR 172, cited
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, cited
Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 178 ALR 421, cited
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833, cited
Otter Gold Mines Ltd v Australian Securities Commission (1997) 26 AAR 99, cited
Liedig v Commissioner of Taxation (Cth) [1994] FCA 1058; (1994) 50 FCR 461, cited
Commissioner of Taxation (Cth) v Swift [1989] FCA 413; (1989) 20 ATR 1434, cited
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, cited
Powell v The Administrative Appeals Tribunal and Anor [1998] FCA 1747; (1998) 89 FCR 1, followed
Szajntop v Gerber (1992) 23 ATR 403, followed
Daher v Minister for Immigration and Ethnic Affairs (1996) 70 FCR 585, followed
Curragh Qld Mining Ltd v Daniel [1992] FCA 44; (1992) 34 FCR 212, applied
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, followed
Charaev v Minister for Immigration and Multicultural Affairs [2000] FCA 865; (2000) 178 ALR 554, referred to
Re Patterson; Ex parte Taylor [2001] HCA 51; (2000) 182 ALR 657, considered
Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400, cited
Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514; (2001) 65 ALD 667, referred to
Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648; (2001) 184 ALR 401, referred to
Javillonar v Minister for Immigration v Multicultural Affairs [2001] FCA 854, referred to
Turini v Minister for Immigration and Multicultural Affairs [2001] FCA 822, referred to
Andarey v Minister for Immigration and Multicultural Affairs [2001] FCA 1544, referred to
Awa v Minister for Immigration and Multicultural Affairs [2002] FCA 291, referred to
R v Moore; Ex parte Australian Telephone and Phonogram Officers' Association [1982] HCA 5; (1982) 148 CLR 600, followed
Surinakova v Minister for Immigration and Ethnic Affairs [1991] FCA 596; (1991) 33 FCR 87, referred to
FRANCESCO MADAFFERI v MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS
V634 OF 2001
FRENCH, O'LOUGHLIN AND WHITLAM JJ
17 JULY 2002
PERTH (By video-link to Melbourne)
IN THE FEDERAL COURT OF AUSTRALIA |
|
VICTORIA DISTRICT REGISTRY |
|
On Appeal from a Single Judge of the Federal Court
1. The appeal be dismissed.
2. The appellant pay the respondent's costs of the appeal.
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 |
|
On Appeal from a Single Judge of the Federal Court
BETWEEN: |
FRANCESCO MADAFFERI APPELLANT |
AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT |
JUDGE: |
FRENCH, O'LOUGHLIN AND WHITLAM JJ |
DATE: |
17 JULY 2002 |
PLACE: |
PERTH (By videolink to Melbourne) |
THE COURT:
Introduction
1 Francesco Madafferi came to Australia from Calabria in Italy on a six month visitor visa in 1989. He did not leave this country before his visa expired. Instead he married settled down in Australia and fathered four children. He was arrested in 1996 following which he applied for a spouse visa. This was refused by an officer of the Department of Immigration and Multicultural Affairs in 1997. Following a lengthy process the Administrative Appeals Tribunal set aside the officer's decision in June 2000 and sent the matter back to the Department for reconsideration. However, in October 2000 the Minister for Immigration and Multicultural Affairs exercised a personal power to set aside the Administrative Appeals Tribunal decision and refused the grant of a visa. He did so in part upon the basis of Madafferi's criminal history. Mr Madafferi challenged the Minister's decision seeking judicial review in the Federal Court. His application was dismissed by Marshall J in May 2001. He appealed against that decision. The Full Court heard his appeal in November 2001 but had to be reconstituted because of the illness and subsequent resignation of one of its members.
2 The appeal raises questions to do with the exercise of the Minister's powers under s 501A of the Migration Act which has been retrospectively amended between the time of the decision made by the primary judge and the hearing of the appeal by this Court. The appeal raises questions about the way in which the Minister took into account Mr Madafferi's criminal history against the range of other factors including his family and community ties in Australia. Behind this appeal is a sad and difficult case involving a young family and the need to balance concerns relating to the protection of the Australian community and the interests of individuals on the other hand. The limited role of the Court in this case, as in all cases of judicial review, is not to decide whether the Minister made the right decision but to examine whether he acted in accordance with law. For the reasons that follow the Court has concluded that he has acted lawfully and that the appeal must be dismissed.
Factual History
3 Francesco Madafferi is an Italian national who was born in Calabria in Southern Italy on 10 January 1961. He is the fifth child of Giovanni and Julia Madafferi who died in 1996 and 1997 respectively. He has six siblings, four sisters and two brothers. Three of his sisters live in Australia. The others reside in Italy.
4 He first visited Australia in November 1977 at age sixteen. His father had worked in Australia for extended periods of time between 1948 and 1971. According to Madafferi his father obtained some form of permanent residence entitlement as a result of which he was able to sponsor various of his children to migrate to Australia. During his visit in 1977, Madafferi, then sixteen, met Anna La Verde, who was the daughter of Antonio La Verde, a close friend of his father. She later became his wife. Madafferi's entry into Australia in November 1977 was as a visitor entitled to stay for up to three months. However, he did not depart Australia until 30 November 1978.
5 On 21 October 1989, Madafferi entered Australia, again as a visitor, with a permit to stay six months. About three days after his arrival he proposed marriage to Anna La Verde. She accepted and they were married on 26 August 1990. They settled down in Australia. According to Madafferi he believed that, having married an Australian citizen, he was properly within Australia. They now have four young children.
6 On 5 July 1996, Madafferi was arrested by officers of the Department of Immigration and Multicultural Affairs ("DIMA") who, it appears, had become aware of his whereabouts and unlawful status in November 1995. He was released from custody upon payment by his brother of a $10,000 surety. On 12 July 1996, he applied for a spouse visa in order to remain in Australia. He was interviewed in connection with this application and in relation to an alleged history of criminal behaviour in Italy between 1980 and 1985. On 27 May 1997, an officer of DIMA refused his application for a spouse visa. The officer making the decision found him not to be a person of good character and exercised his discretion under s 501 of the Migration Act 1958 (Cth) to refuse to grant him a visa. Madafferi then lodged an application to the Administrative Appeals Tribunal ("AAT") on 20 June 1997 seeking review of the decision to refuse him a spouse visa. The hearing commenced before Deputy President Forrest on 24 August 1998. Counsel for Madafferi asked Deputy President Forrest to disqualify himself on the grounds of reasonable apprehension of bias. Deputy President Forrest refused and the matter was adjourned to enable an appeal to be brought to this Court. For reasons which do not appear from the record, the appeal was not brought on for hearing until 11 February 2000. It was dismissed by Heerey J.
7 The application for review by the AAT was relisted for hearing before Deputy President Blow on 4 and 5 May 2000. An application for an adjournment was made on 2 May 2000 and refused. A notice of appeal against that decision was filed in the Federal Court on 3 May. The hearing began on 4 May 2000 with a further application for an adjournment which was also refused. A fuller history of the convoluted proceedings in the AAT appears from the reasons for decision of Deputy President Blow given on 7 June 2000. On that date the AAT made the following determination:
"The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with a direction that the applicant is not to be refused a visa on character grounds solely on the basis of information presently available to the respondent."
8 On 24 July 2000, a delegate of the Minister gave Madafferi notice of the Minister's intention to consider refusing his spouse visa under s 501A of the Migration Act. On 18 October 2000, the Minister exercised his discretion under s 501A(2)(a) of the Migration Act to set aside the decision of the AAT made on 7 June 2000 and decided, in lieu thereof, to refuse Madafferi the grant of a permanent visa. This was done on the basis that he had not passed the character test as defined in s 501 of the Act and that the refusal was in the national interest.
9 On 26 October 2000, Madafferi filed an application in this Court seeking an order of review of the Minister's decision pursuant to Pt 8 of the Migration Act and s 39B(1A)(c) of the Judiciary Act 1903 (Cth). In the event he relied upon Pt 8 of the Migration Act. Various amended versions of the application were subsequently filed, the final and fourth amended application being filed on 7 March 2001. On 18 May 2001, Marshall J dismissed the application for review and ordered that Madafferi pay the Minister's costs of the application including reserved costs. Madafferi appeals against that decision.
History of Proceedings on the Appeal
10 The appeal came on for hearing before a Full Court comprised of French, Whitlam and Katz JJ on 13 November 2001. Judgment was then reserved. Subsequently Katz J became ill and was unable to participate in the determination of the appeal. His Honour has since resigned from the Court on account of his illness. When it appeared in January 2002 that Katz J would be unable to participate in the decision of the Court the parties were asked whether they would consent to the appeal being determined by French and Whitlam JJ pursuant to s 14(3) of the Federal Court of Australia Act. On 11 February 2002 Madafferi's solicitors informed the Court that their client was not in a position to provide reliable instructions on the question of consent because of his emotional state. In the event the Chief Justice constituted a new bench of French, O'Loughlin and Whitlam JJ on 26 February.
11 A directions hearing was held on 5 March and orders made that:
"1. The appeal before the reconstituted Full Court is to be heard and determined by reference to the transcript of the hearing which has already taken place and the written submissions already filed in relation thereto subject to the following directions.2. The appellant has liberty to apply within 21 days for leave to make oral submissions or further written submissions to the reconstituted Full Court.
3. Liberty to the parties to apply generally.
4. Costs today reserved."
12 Subsequently, Mr Madafferi's solicitors requested a 14 day extension to obtain instructions regarding the seeking of leave to make oral or written submissions to the reconstituted Full Court. A further directions hearing was held on 26 March and the following orders were made:
"1. The time limited for the liberty granted to the appellant to apply for leave to make further written or oral submissions is extended to 9 April.2. Costs today reserved."
13 In the event a further directions hearing was held on 12 April 2002 when counsel for Madafferi requested a further 14 days to provide written submissions to the Court particularly with reference to the decision of the Full Court in Lam v Minister for Immigration and Multicultural Affairs [2002] FCA 175 judgment in which case had been given on 1 March 2002. On 12 April further directions were made giving Madafferi leave to file and serve written submissions on or before 19 April and the Minister leave to file submissions in reply on or before 26 April. Supplementary submissions were filed on behalf of Madafferi on 19 April and on behalf of the Minister on 22 April. The Court has proceeded to deal with the appeal on the basis of the papers before the Court and the transcript of the hearing in November including written submissions filed at that time and supplementary submissions subsequently filed.
Statutory Framework
14 The relevant provisions of the Migration Act, as they stood at the time of the Ministerial decision, were to be found in Pt 9 of the Act entitled "Miscellaneous". The relevant sections were as amended and introduced by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth).
15 Section 501 provides for refusal or cancellation of a visa on character grounds. Relevantly it provides:
"501(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..
.
.
(3) The Minister may:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test; and
(d) the Minister is satisfied that the refusal or cancellation is in the national interest.
(4) The power under subsection (3) may only be exercised by the Minister personally.
(5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).
(6) For the purposes 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)); or
(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(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
(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test.
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or
(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution..
.
.
(12) In this section:
court includes a court martial or similar military tribunal.
imprisonment includes any form of punitive detention in a facility or institution.
sentence includes any form of determination of punishment for an offence."
16 Under s 500(1) applications may be made to the AAT for review of decisions of the delegate of the Minister under s 501 other than decisions to which a certificate under s 502 applies.
17 Section 501A conferred upon the Minister power to set aside a decision of the Tribunal and refuse the grant of a visa. The section provided:
"501A(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.
(3) 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 Minister is satisfied that the refusal or cancellation is in the national interest.
(4) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).
(5) The power under subsection (2) or (3) may only be exercised by the Minister personally.
(6) The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (3) in respect of the original decision, whether or not the Minister is requested to do so, or in any other circumstances.
(7) A decision under subsection (2) or (3) is not reviewable under Part 5 or 7."
The Explanatory Memorandum relating to the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998 explained in the first section headed "Outline" that the amendments it effected would, inter alia:
". Strengthen the Minister's personal power to refuse to grant or cancel a visa on character grounds:
- to enable the Minister to personally exercise a special power to intervene in any case and substitute his/her own decision to refuse to grant or cancel. This decision may be revoked if made without prior notice to the person; and
- to ensure that the Minister's personal decisions are not reviewable."
18 In relation to s 501A the memorandum said inter alia:
"59. New subsection 501A(1) provides that section 501A (inserted by this Act) applies where a visa is granted or remains in effect as a result of a decision, by a delegate of the Minister or by the AAT ("the original decision"), not to exercise the power contained in subsection 501(1) or (2) respectively (as inserted by this Act).60. New subsections 501A(2) and (3) allow the Minister to set aside the original decision and substitute a less favourable decision (that is, the Minister may decide to refuse to grant or cancel a visa) where the Minister is satisfied that it is in the national interest to refuse to grant or cancel the visa and either:
* the Minister reasonably suspects the person does not pass the character test and the person does not satisfy the Minister that the person passes the character test (defined in subsection 501(6) inserted by this Act) (new subsection 501A(2)); or
* the Minister reasonably suspects the person does not pass the character test (new subsection 501A(3))."
19 Section 501A which was in effect at the time that the Minister made the impugned decision was amended retrospectively by operation of the Migration Legislation Amendment Act (No 1) 2001. Relevantly, as a result of that amendment subs 501A(1) now provides:
"501A(1) This section applies if:(a) a delegate of the Minister; or
(b) the Administrative Appeals Tribunal;
makes a decision (the original decision):
(c) not to exercise 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;
whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test."
This amending Act commenced operation on 27 September 2001. The amendment to s 501A(1)(c) commenced retrospectively on 1 June 1999 - see s 2(4) and Part 1 Schedule 2 to the Amendment Act.
20 As may be seen, paragraph (c) had identified, as a decision which could be set aside by the Minister, a decision of a delegate or the AAT "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". This was amended to refer to a decision of the delegate or the AAT "not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to a person".
21 The Bill which became the Act was originally designated the Migration Legislation Amendment Bill (No 2) 2000. When enacted it was entitled the Migration Legislation Amendment Act (No 1) 2001. The amendment to paragraph 501A(1)(c) was included in Schedule 2 to the Act under the heading Technical Amendments.
22 In s 2(4) of the Amendment Act it was provided:-
"Part 1 of Schedule 2 is taken to have commenced on 1 June 1999, immediately after the commencement of item 23 of Schedule 1 to the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998."
This picks up item 1 in Schedule 2 which effects the amendment to paragraph 501A(1)(c).
23 The Explanatory Memorandum for the Migration Legislation Amendment Bill (No 2) 2000 explained the amendment to paragraph (c) thus:
"1. This item amends section 501A to clarify the policy intention that the Minister has the power to set aside a non-adverse subsection 501(1) decision of a delegate or the Administrative Appeals Tribunal ("the AAT") and substitute his or her own adverse decision.2. Currently, paragraph 501A(1)(c) incorrectly suggests that the AAT has the power to grant a visa when reviewing a section 501(1) decision made by a delegate of the Minister.
3. However, subsection 501(1) only confers a power to refuse to grant a visa to a person, or not to refuse to grant a visa depending on whether or not the decision maker is satisfied that the person passes the character test. Subsection 501(1) does not confer a power to actually grant a visa. The power to grant a visa is contained in section 65 of the Act.
4. As paragraph 500(1)(b) gives the AAT power to review a section 501 decision made by a delegate of the Minister, the AAT does not actually have the power to grant a visa. This item ensures that the Minister can set aside the AAT's non-adverse subsection 501(1) decision and substitute his or her own adverse decision."
The Decision of the Administrative Appeals Tribunal
24 The Tribunal began by reviewing Madafferi's personal history. It found that between 1980 and 1984 he had committed a series of very serious crimes in Italy involving violence and dishonesty, some of which resulted in sentences of imprisonment. It also found that since coming to Australia in October 1989, he has been convicted of other crimes in absentia by Italian Courts, those having allegedly been committed in 1980 and 1985. It set out his criminal history as evidenced by his convictions in Italy. It rejected his attempts to call into question the findings made by the Italian Courts on the matters in respect of which he was tried in person.
25 The offences in Italy in respect of which the AAT rejected Madafferi's claims of innocence comprised the following:
1. 27 May 1980 He collected money deposited in a bag at a prearranged location in answer to demands made of three brothers named Borgonovo following the explosion of a bomb in their home. It was not alleged that he was involved in the bombing or the making of the phone calls. He was given a suspended sentence of twenty-two months' imprisonment and fined 300,000 lire. The Tribunal accepted that he had acted as no more than a "bag man".
2. 5 October 1980 In conjunction with three other men he ambushed a third man called Fabrizio. Madafferi stabbed him repeatedly. He was not the organiser of the aggression against Fabrizio. He was sentenced to thirty months' imprisonment but bailed on condition that he reside in his place of origin. The sentence was later quashed by the Court of Appeal in Milan under an amnesty.
3. 10 September 1982 Madafferi was involved in a fight in which he stabbed a man. He was found to have drugs in his possession, including heroin, cocaine and monoacetylmorphene. He was convicted of causing malicious personal injuries with aggravating circumstances and sentenced to eight months' imprisonment and fined 100,000 lire. In relation to the drug charges he was sentenced to forty months imprisonment and fined 5 million lire.
4. April 1984 Madafferi was convicted of attempted extortion and sentenced to thirty months imprisonment and a fine of 1,500,000 lire. The sentence was reduced in 1992 to two years imprisonment and a fine of 1million lire.
26 The AAT referred to convictions imposed on Madafferi by Italian Courts in his absence. They were as follows:
1. 1 December 1986 Receiving stolen property, namely a car with a stolen chassis and stolen engine on 15 May 1980. He was sentenced to sixteen months' imprisonment and fined 800,000 lire.
2. 30 June 1993 Assaulting a fellow prisoner on 17 October 1985. He was sentenced to three years and ten days' imprisonment.
In each of these cases he maintained his innocence. The AAT was reluctant to attach any weight to findings made in absentia. However it concluded:
"In the early 1980's the applicant stabbed two men and was involved in two extortion attempts. I do not think it would make any difference to my opinion of his character at that time of his life if I knew whether he knew whether his car was stolen, or if I knew to what extent (if any) he had acted aggressively in the fight in the prison."
27 The AAT considered Madafferi's conduct in relation to immigration matters. It gave no weight to the fact that, as a sixteen year old, he had stayed in Australia for twelve months from 17 November 1977 on a visitor entry permit that was only valid for a stay of three months. It noted his entry into Australia in 1989 which was on a visitor entry permit valid for only six months. He married an Australian citizen in August 1990 and said that he thought his marriage entitled him to stay. The AAT had the impression that he was by no means an intelligent man and was not satisfied that he knew any better. It referred to his arrest by an officer of the Department on 5 July 1996 and to the interview that followed and two questions and answers that were recorded in that interview:
"Q30. Have you committed any offences against the laws of Australia or another country before or after your arrival in Australia?A30. Details: not in Australia. Fight trouble.
Q31. Have you been convicted of a criminal offence in Australia or overseas?
A31. Details: No"
The AAT, referring to the obvious falsity of these answers, said:
"He was no doubt trying to deceive the interviewer for the purpose of remaining in Australia with his wife and children. Many people in his situation, without the benefit of time to think, he would have responded in the same way." (sic)
28 On 11 July 1996, Madafferi made an application to remain permanently in Australia. The application form included a question, question 40:
"Have you or any of your children or dependents included in this form...been convicted of a crime or offence in any country (including any conviction which is now removed from criminal records)?"
His migration agent ticked a box indicating that the answer was "Yes". No details of his convictions were provided with the application when lodged. Given that he spoke very little English and relied on his migration agent to complete the form, the AAT did not think it would be fair to take into account against him, the agent's failure to provide the details requested.
29 Madafferi had been interviewed by a departmental officer in connection with his application. The Tribunal was satisfied that he lied and attempted to mislead the interviewer by deliberately understating the extent of his past criminal activities. It found that, to a lesser extent, he did the same thing again by making false claims of innocence during the Tribunal hearing. The Tribunal also had before it criminal intelligence information and evidence from an officer of the Victoria Police tendered by way of a statement relying in part upon information provided to the police by six unnamed informers implicating a relative of Madafferi's in some very serious crimes. The Tribunal did not find that the information was enough to allow it to infer that, because of Madafferi's association with a relative suspected of serious conduct, he himself must be someone who was not of good character. In May 1991, he had supplied false information when applying for a Victorian Shooter's Licence. On the relevant application form he failed to disclose, as required, his prior convictions. However he was not charged, apparently because he did not understand the questions on the application form and had it completed by someone else. He subsequently said he never bought a gun. He did not offer any explanation as to why he had obtained a Shooter's Licence in the first place. The Tribunal's view was that whatever his motives were for obtaining the Shooter's Licence it did not think evidence about it, even in conjunction with the hearsay statements of the informers, should lead to a conclusion that Madafferi had been involved in some sort of criminal activity.
30 After setting out the history of the proceedings, which included what was described as a "...saga of adjournment applications", the Tribunal observed that there had been an unusual campaign of obfuscation in the case designed to delay the hearing by the Tribunal or otherwise to provide some basis for an appeal to the Federal Court during which Madafferi could remain in Australia. The Tribunal, however, was not prepared to hold him personally responsible for that "extraordinary series of events". Nor was it prepared to infer that the various adjournment strategies that were attempted reflected adversely on his character.
31 The Tribunal adverted to Madafferi's family situation, the fact that he and his wife were married on 26 August 1990 and that they had a son who, at the time of the hearing, had just turned nine years old, a daughter who was seven and another daughter who would soon be four. It noted that he had three sisters in Italy and two brothers and a sister in Australia. His family was described by the Tribunal as seeming to be "... a happy, well bonded Italian-Australian household".
32 By way of conclusion, the Tribunal felt it should regard Madafferi as a person who was not of good character. In coming to that conclusion it did not think it appropriate to judge him by the crimes that he had committed in Italy. However it did believe that his conduct in relation to migration matters and particularly in trying to mislead the interviewer and the Tribunal as to the extent of his crimes in Italy showed that he was willing to resort to dishonesty when it suited him. On this basis, the Tribunal was satisfied that he was not of good character having regard to his general conduct pursuant to s 501(2)(a)(ii) of the Act.
33 The Tribunal considered also evidence concerning a warrant issued by Italian authorities for Madafferi's arrest. If he were to return to Italy the warrant would be executed and would require him to serve a consolidated sentence of four years, eight months and six days' imprisonment in respect of various unserved and previously suspended sentences. While there might be new trials on the charges dealt with in absentia, this was only a possibility. The Tribunal concluded that it would be oppressive to require Madafferi to leave Australia given that the warrant resulted from proceedings dealt with in absentia and given that Italian authorities had known he was in Australia for over two years and possibly more and had not been interested in extraditing him.
34 The Tribunal referred to Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 and identified the interests of Madafferi's children as a primary consideration. His wife had decided that she would stay in Australia if he were refused a visa. She had never lived in Italy. The children had never been there. Madafferi would probably be arrested and imprisoned if he returned there. The children would effectively lose their father if he were refused a visa and their mother "... would be saddened by the loss of her husband, probably for a very long time". The Tribunal concluded this would be likely to have an adverse impact on the children.
35 The Tribunal also took into account the interests of Madafferi's wife, although it did not give them the same weight as those of the children. It found that she had deliberately refrained from finding out about his criminal activities in Italy. If it were necessary for him to leave Australia "... she would have only herself to blame for not making reasonable enquiries about the man she decided to marry". The Tribunal concluded in the following terms:
"It is true that the applicant committed some serious crimes between 15 and 20 years ago, and as a result should never have been allowed to take up residence in Australia. It is also true that he is still prepared to resort to dishonesty when it suits him. But I see little risk to the Australian community in permitting him to continue to live here. I therefore think that the factors weighing in favour of the granting of a visa, particularly the interests of his children, should predominant over the factors weighing in favour of refusing one. I have therefore decided to set aside the decision under review and to remit the matter to the respondent for reconsideration. I do not think that a visa should be refused on character grounds unless significant fresh information associating the applicant with criminal activity in Australia happens to come to light. I have therefore decided to give a direction that he is not to be refused a visa on character grounds on the basis of any information presently available."
The Minister's Decision
36 On 24 July 2000, an officer of DIMA sent a notice to Madafferi acknowledging the decision of the AAT and advising that the Minister could "... set aside the AAT's decision under s 501A of the Migration Act 1958 (the Act) and refuse to grant a visa". The notice invited Madafferi to comment before the Minister considered whether to refuse the visa. He was informed that the Department would then prepare a submission for the Minister. He was asked to provide his comments by 7 August 2000. His solicitors sought an extension of that time limit and an extension was granted to 16 August 2000. Further requests for extensions beyond that date were not granted. On 15 August 2000, a courier delivered a submission from Madafferi's solicitors which stated, in a covering letter, that the refusal by the Department to grant a further extension beyond that date failed to accord procedural fairness. Madafferi's solicitors reserved the right to make further submissions at a later date.
37 A minute was prepared for the Minister on 13 October 2000 and on 18 October 2000 he signed the minute which concluded thus:
"PART E: MINISTER'S DECISION55. I have considered all relevant matters including an assessment of the character test within the meaning of s 501 Migration Act 1958, and the non-citizen's comments, and have decided that:
MINISTER'S DECISION
Mr Madafferi passes the character test and the visa application is not refused on character grounds.
Agree/Not Agreed.Mr Madafferi does not pass the character test and has been unable to satisfy me that he does pass the character test. Agree/
Not Agreed.I am satisfied that refusal is in the national interest. Agree/
Not AgreedI exercise my discretion to not set aside the original decision and refuse the visa.
Agree/Not AgreedI set aside the original decision and substitute a decision to refuse Mr Madafferi's application. Agreed/
Not AgreedPhillip Ruddock
Minister for Immigration and Multicultural Affairs
18 October 2000"
Institution of Federal Court Proceedings
38 On 31 October 2000, Madafferi commenced proceedings in the Federal Court under Pt 8 of the Migration Act seeking review of the Minister's decision of 18 October 2000. On 1 November 2000 Marshall J made interlocutory orders staying the decision of 18 October 2000. The Minister filed a notice of appeal shortly afterwards.
The Minister's Reasons for Decision
39 On 21 December 2000, the Minister signed a statement of reasons for his decision, a copy of which was sent by facsimile to Madafferi's solicitors and delivered to them on the same day. In his reasons the Minister referred to s 501A(2) of the Act. Before exercising his discretion to set aside the original decision and making a decision to refuse the visa he had formed a reasonable suspicion, under s 501(2)(c) that Madafferi did not pass the character test because in 1984, he had been convicted of the crime of "attempted extortion" and sentenced to twenty four months imprisonment. He also took account of the fact that Madafferi was convicted on four other occasions in 1980 and 1982 receiving sentences of twenty two, thirty, eight and thirty six months imprisonment and that he was sentenced in absentia in 1986 and 1993 and as a result had a current arrest warrant in Italy where he faced an outstanding sentence of four years, eight months and six days.
40 The Minister looked to the definition of "substantial criminal record" in subs 501(7) of the Act. Section 501(6)(a) has the effect that a person with a substantial criminal record does not pass the character test. Madafferi fell within that definition although this was implied rather than expressed in the Minister's reasons. In dealing with officers of DIMA, he had presented false and misleading information about his criminal history. The Minister found Madafferi to be not a person of good character by reason of his general conduct. He was not satisfied that his general conduct as a parent and business person outweighed his criminal conduct and his general conduct in attempting to mislead DIMA officers.
41 The Minister considered whether it was in the national interest for Madafferi's visa to be refused. He referred to submissions from Madafferi's legal representatives that there was nothing to suggest his removal from Australia would be in the national interest and that his input into Australian society had been and continued to be beneficial. In this context the Minister again considered his criminal background and past and present general conduct. He referred to the outstanding warrant of arrest in Italy and the outstanding sentence of four years, eight months and six days. He also considered the effect on Australia's reputation and good name in the international community should Madafferi be allowed to remain. He said:
"On balance, I found that due to the seriousness of Mr Madafferi's convictions and his outstanding warrant of arrest and sentence in Italy, it would be in the national interest to refuse his visa."
In exercising his discretion to refuse the permanent visa the Minister said he took into account all matters referred to in a minute sent to him by Mr Costello, the Assistant Secretary, Border Control Branch dated 13 October 2000. He also had regard to comments submitted by Madafferi's legal representatives on 15 August 2000.
42 The Minister went on to say that he proceeded in accordance with the government's view on serious crimes as set out in his General Direction No 17 and in accordance with that Direction had regard to three primary considerations.
The three primary considerations were:-
1. The protection of the Australian community.
2. The expectations of the Australian community.
3. The best interests of Madafferi's children.
43 In relation to the protection of the Australian community, the Minister took into account the seriousness and the nature of Madafferi's conduct and the likelihood that it might be repeated. He observed that he had been convicted of a number of serious offences involving repeated acts of violence, attempted extortion, illegal possession of narcotics and receiving stolen property. In accordance with the General Direction 17 he considered, in particular, those offences involving violence against the person, drugs and attempted extortion were very serious. As to Madafferi's general conduct, he took into account his two overstays, the denials of his criminal record in dealing with the Department, and his attempt to provide misleading information. In assessing the likelihood that the conduct might be repeated, he took into account the warrant of arrest and the outstanding consolidated sentence in Italy. He saw Madafferi as having continued to present false or misleading information to the Department and the AAT and noted that the AAT had acknowledged that he was still prepared to resort to dishonesty when it suited him. Taking into account all of those matters and the comments submitted on behalf of Madafferi by his legal representatives, the Minister assessed that "... there is a low to moderate risk that Mr Madafferi may reoffend".
44 The Minister also considered whether the refusal of the visa and Madafferi's removal from Australia would be a deterrent to other non-citizens. He noted the public attention the case had received within the Italian-Australian community and found that the refusal of the visa could have a deterrent value for others with a criminal background who contemplated a permanent stay in Australia. He also expressed the view that the refusal would send a strong message to others who contemplated crimes against the Migration Act and gave these factors "considerable weight".
45 On the second primary consideration, the Minister said that the Australian community expected non-citizens to obey Australian laws while in Australia, including the migration laws. He took into account that Madafferi had resided in this country since 1989 and has an Australian citizen wife and three Australian born children. He noted a petition of 1,343 signatures of members of the general community and the Italian-Australian community submitted by Madafferi's lawyers expressing support for his application. Nevertheless, he assessed that given the seriousness of the offences and the fact of the outstanding warrant in Italy the Australian community would expect Madafferi's visa to be refused and for him to be removed from Australia.
46 On the third primary consideration relating to the interests of the three children, he took into account a psychological report that the family was a close knit one and that the children demonstrated obvious caring for their parents and for each other. While separation from their father might cause the children to suffer, this did not diminish the seriousness of his crimes and his general conduct with regard to Australia's migration laws. The Minister took into account other factors such as Madafferi's ties to the Australian community and that the refusal of his visa might result in him not being able to provide financial assistance to his wife and children. He had regard to psychological evidence of his changed patterns of life, his recent good conduct, including his employment history, and references attesting to his good character from his employees, business associates, friends and relatives. The Minister referred to Article 23.1 of the International Covenant on Civil and Political Rights which was relied upon by Madafferi's legal representatives. This Article provides that "the family is the natural and fundamental group of society and is entitled to protection by society and the State". He gave this consideration "moderate weight". In deciding to exercise his discretion to refuse Madafferi permanent residence, the Minister found that the protection of the Australian community, particularly having regard to the nature and seriousness of the offences and the expectations of the Australian community outweighed the other relevant considerations.
47 On 7 March 2001, the Minister provided a further statement of reasons by way of elaboration of certain paragraphs of his reasons delivered on 22 December 2000. This followed a request made by counsel for Madafferi in the Federal Court proceedings before Marshall J. The supplementary reasons do not add a great deal and it is not necessary to set them out in detail here.
The Reasons for Decision of the Primary Judge
48 The primary judge identified the following issues raised by the submissions put to him on behalf of Madafferi:
1. The Minister's decision involved an error of law.
2. The Minister's decision involved an improper exercise of power.
3. The Minister did not observe procedures required by the Act.
4. The Minister's decision involved actual bias.
5. The Minister's decision was based on no evidence.
49 On the error of law issue, his Honour rejected a submission that the Minister had erred in proceeding under s 501A(2). It was submitted that the power conferred on the Minister by that section was conditioned upon the AAT having made a decision to grant a visa. In this case the AAT had merely remitted the matter of the visa application to the Minister. His Honour, in rejecting the argument applied the decision of Lehane J in Lam v Minister for Immigration & Multicultural Affairs [2000] FCA 1226; (2000) 104 FCR 454. He rejected the suggestion that Lam at first instance was distinguishable on the facts. An appeal against the decision of Lehane J was dismissed by the Full Court but on the basis of the retrospective amendment to the Act effected by the Migration Legislation Amendment Act (No 1) 2001 (Cth). The correctness of the decision of Lehane J was not canvassed by the Full Court.
50 The primary judge rejected a submission that the Minister had misconstrued s 501(6)(c) of the Act by failing to distinguish whether he had regard to "either or both" Madafferi's "past and present criminal conduct" and/or his "past and present general conduct". His Honour regarded that aspect of the submissions as without merit. The various limbs of the character test are disjunctive. If any limb is failed, the character test is failed in full. In relation to the Minister's consideration of the national interest, his Honour found that the arguments were essentially concerned about the way in which the Minister expressed himself in his reasons rather than raising a point of any substance.
51 His Honour rejected a submission that the Minister had erred in treating General Direction No 17 as binding the exercise of his discretion. The matters covered in the Direction were referred to but not in a way that bound the Minister to have exclusive regard to them. He had regard to considerations other than those which he described as primary, such as Madafferi's general conduct, the low to moderate risk that he might reoffend and his ties to the Australian community. It was also submitted that General Direction No 17 was invalid because it exceeded the authority given to the Minister to give written directions under s 499. However, that provision was said to give the Minister a broad discretion to issue directions regarding the functions and powers created under the Act. The formulation of a policy to guide decision making fell within the discretion created in s 499.
52 The Minister was said to have erred in law by not considering separately whether the decision of the AAT was such that the national interest required that it be set aside. His Honour accepted the argument on behalf of the Minister that s 501A is a "stand alone" provision. Under the heading of improper exercise of power, it was submitted for Madafferi that the power given by s 501A(2) is for the purpose of advancing the national interest. It was said that the Minister had improperly had regard to Madafferi's convictions and outstanding custody arrest warrant in Italy. His Honour rejected that submission and a submission that the Minister did not give real consideration to the merits of the case.
53 A failure to observe procedures in connection with the making of the decision was raised without success. It was argued that, on the proper construction of the statutory scheme, the procedure contemplated by the Migration Act is that the form of application to be used will address or invite an applicant to address all the criteria prescribed for the class of visa.
54 His Honour rejected a submission that because Madafferi was engaged to be married when he entered Australia in October 1989 the Minister was not entitled to act under s 501A. He found the factual claim to be highly questionable. He rejected the submission and also rejected a contention that the Minister was exercising legislative power under s 501.
55 It was then submitted that the Minister was affected by actual bias in coming to his decision. Reliance was placed upon the Minister's reasons and, in particular, his statement that the refusal of Madafferi's visa could have deterrent value for others with criminal background who contemplate a permanent stay in Australia. The Minister's reasons were said to indicate that he had formed the view that no person with a criminal background could ever obtain a visa to permanently stay in Australia. His Honour did not consider that this submission reflected the Minister's view. The Minister has a clear and obvious discretion to grant visas to persons who have a criminal background. From the Minister's reasons it was clear that he was not applying a preformulated policy regarding persons with criminal backgrounds.
56 His Honour also rejected the contention that the Minister's decision was based on particular facts which did not exist.
Grounds for Appeal
57 The grounds of appeal were:
"2. The Learned Trial Judge erred in holding that by its decision of 7 June 2000 the Administrative Appeals Tribunal made a decision to grant a visa to a person as a result of not exercising the power conferred by ss.501(1) of the Migration Act 1958 (Cth) to refuse to grant a visa to the person for the purposes of s 501A(1)(c) of that Act.3. The Learned Trial Judge erred in failing to hold that there was no evidence or other material to justify the making of the decision within s.476(1)(g) of the Migration Act because the respondent based the decision on a particular fact, being that no change had or would occur to the liability of the appellant under Italian criminal law after 16 January 1995, when that fact did not exist.
4. Alternatively, the Learned Trial Judge erred in failing to hold that there was no evidence or other material to justify the making of the decision within s.476(1)(g) of the Migration Act because the respondent based the decision on the existence of the fact that the appellant was sought in Italy to serve a term of imprisonment of four years, eight months and six days when this fact did not exist because:
(a) On and from 7 August 2000 the Prosecutor at Reggio Emilia in the Republic of Italy had pending before the Court of Reggio Emilia an application for an order that any liability of the appellant under Italian criminal law be reduced by an amount to be calculated according to the laws of Italy;
(b) On 15 February 2001 the Court at Reggio Emilia had ordered that the liability of the appellant under Italian criminal law be reduced by an amount to be calculated according to the laws of Italy;
(c) At all times on and after 19 May 1992 if the appellant did not return to Italy before 19 May 2002 such liability as he had under Italian criminal law would, in any event, be extinguished by operation of Italian law and in particular Article 172 of the Penal Code of Italy.
5. The Learned Trial Judge erred in holding that the fact that the appellant faced a shorter sentence than that of four years, eight months and six days accepted by the respondent would not have affected the exercise by the respondent of the power given to him by s.501A(2) of the Migration Act.
6. The Learned Trial Judge erred in failing to hold that on its proper construction s.501A(2)(e) of the Migration Act required the respondent be satisfied that the entire exercise of power to set aside the original decision and refuse a visa be in the national interest before being authorised to exercise the power.
7. The Learned Trial Judge erred in failing to hold that the respondent did not have jurisdiction to make the decision, or alternatively the decision was not authorised by the Migration Act, or in the further alternative the decision was an improper exercise of the power conferred by the Migration Act because the respondent exercised a personal discretionary power in accordance with a rule or policy in that the respondent exercised an unfettered discretionary power in accordance with General Direction No 17.
8. The Respondent erred in law within s.476(1)(e) of the Migration Act in failing to construe s.501A(2) and (6) of the Migration Act as requiring him to consider whether to invoke or to consider the exercise of the personal powers given to him under s.501A."
58 Grounds 7 and 8 were incorporated in an amended notice of appeal. Leave to amend to raise those grounds was sought at the hearing. There was no prejudice flowing from the inclusion of the additional grounds and they were fully argued at the appeal. Leave is given to amend the notice accordingly.
The First Ground of Appeal - No Relevant AAT Decision to Attract Ministerial Power
59 The order made by the AAT on 7 June 2002 was in the following terms:
"The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with a direction that the applicant is not to be refused a visa on character grounds solely on the basis of information presently available to the respondent."
The power of the Minister under s 501A(2) at the time he made the decision the subject of this appeal was conditioned upon a delegate or the AAT making a decision of one of two kinds:
. to grant a visa to a person as a result of not exercising the power conferred by subs 501(1) to refuse to grant a visa to the person (s 501A(1)(c));
. not to exercise the power conferred by subs 501(2) to cancel a visa that has been granted to a person (s 501A(1)(d)).
60 This was how the law stood when the matter was before Marshall J at first instance. It was on that basis that his Honour applied the decision of Lehane J in Lam. In Lam, the AAT had set aside a delegate's decision refusing the grant of a visa and having found, contrary to the delegate's view, that the applicant met the relevant public interest criteria, remitted the matter to the delegate "for consideration of the remaining aspects of [his] application". On the literal interpretation of s 501A as it stood, the Minister would have had no power to set aside that decision because it was not a decision to grant a visa. Indeed on a literal interpretation, there would have been difficulty in relation to the delegate's decisions where a delegate made a decision under s 501 not to refuse to grant a visa. Such a decision would not of itself have the "result" that a visa is granted. Lehane J observed:
"It is already straining language somewhat, however, to say that a delegate of the Minister makes a decision to grant a visa to a person as a result of not exercising the power conferred by s 501(1) to refuse to grant it. To say that a delegate does so is hardly to apply a literal construction of pars (a) and (c) of s 501A(1). There seems no reason to doubt, however, though it does not arise in this case, that it is nevertheless a correct construction." (461)
61 In relation to decisions of the AAT, his Honour held that the consequences of a literal interpretation of s 501A(1)(c) could properly be described as absurd. His Honour concluded:
"In my view, the literal construction proposed by the applicant does indeed produce a result so absurd, and so at odds with the apparent object of the provision, that an available construction which would avoid those difficulties is to be preferred. Because both pars (c) and (d) of s 501A(1) are plainly intended to operate in respect of both decisions of a delegate and decisions of the Tribunal, par (c) should be given, if possible, a construction which encompasses the decisions which a delegate and the Tribunal are authorised to make in exercise of the power conferred by s 501. In neither case does that include, literally, a decision to grant a visa as a result of not exercising the power conferred by s 501(1). In each case a decision may be made in exercise of the power under s 501(1) which may be described as an exercise in favour (but, because other criterion must be satisfied, not conclusively in favour) of the grant of a visa. That, which is the sense for which the Minister contends, is the sense in which, in my view, the expression "a decision to grant a visa" may and should be read." (462)
62 The appeal in the present case was heard by this Court, as originally constituted, on 13 November 2001, the day after the hearing of the appeal by the Full Court in Lam. Senior counsel for Madafferi submitted that the retrospective operation of the amendment to s 501A did not indicate a contrary intention to the operation of s 8(e) of the Acts Interpretation Act 1901 (Cth). The submission was maintained therefore, that the law applicable to this appeal was to be found in s 501A as it stood prior to the retrospective amendment and that the decision in Lam at first instance was wrong and, in the alternative, distinguishable.
63 In Lam the decision of the AAT upon which the Minister operated under s 501A was a decision remitting the matter to the delegate with a finding that the applicant met the requirements of one specific criterion, namely 4001(4) under the Migration Regulations. Criterion 4001 related to public interest considerations under s 501 of the Act as it then stood. So, it was argued, the AAT foreclosed the issue of character in Lam and the delegate was limited to consideration of criteria other than character. In the present case, it was open to the delegate to make a fresh determination adverse to character. The Minister therefore exercised his power under s 501A with respect to character too early in the decision-making process. It was submitted he should have waited until there was another "original decision" as required by s 501A, namely a final determination by the delegate on grounds of character in favour of Madafferi.
64 The Full Court dismissed the appeal from the decision of Lehane J on 1 March 2002 - Lam v Minister for Immigration & Multicultural Affairs [2002] FCA 175. It held that, because of the retrospective amending legislation, it was not necessary to address the correctness of his Honour's decision. It was accepted as common ground in the Full Court that if the amendment applied to the appeal before the Court, the appeal must be dismissed. The Full Court was of the view that the amendment was intended to have a retrospective effect and to operate both at the time of the first instance hearing and the hearing of the appeal. The consequence was that the law, taken by the Full Court to have applied to the matter both before the primary judge and before the Full Court, was the law as varied by the amendment. The order made by Lehane J was made on 1 September 2000 and the hearing before the Full Court occurred on 12 November 2001. Both dates were after the retrospective commencement of the Amendment Act. The Full Court held that it must deal with the matter as if it and the primary judge were bound to address the issue on the basis that the amended law was and is applicable. If that law were applied, then the consequence would be that the appeal must be dismissed.
65 Their Honours also reviewed recent authorities in the High Court as to the nature of an appeal from a single judge to the Full Federal Court - CDJ v VAJ [1998] HCA 76; (1998) 197 CLR 172; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 and Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 178 ALR 421. They concluded that these decisions supported the proposition contended for by the Minister, namely that an appeal to the Full Federal Court is an appeal by way of rehearing and that the law applicable as at the date of the hearing of the appeal should be applied. See also Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833.
66 After the decision of the Full Court dismissing the Lam appeal, the parties lodged supplementary submissions pursuant to a direction given on 12 April 2002. The supplementary submissions for Madafferi maintained the proposition that Lam was distinguishable. The decision of the AAT in Madafferi's proceeding was said to be one of deliberate neutrality. It was neither in favour of, nor against, the grant of a visa.
67 If s 501A, as amended by the Migration Legislation Amendment Act (No 1) 2001 (Cth), applies to the present case, then the Minister's power under that Act is only enlivened by the decision of a delegate or the AAT which falls into one or other of the categories described in the new s 501A(1)(c) and s 501A(1)(d). The powers of the AAT on a review of a delegate's decision made under s 501 are derived from s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) which provides:
"43(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing -(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and -
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal."
68 By virtue of s 43 of the Administrative Appeals Tribunal Act empowering it to "exercise all the powers and discretions that are conferred by the relevant enactment on the person who made the decision", the AAT stands in place of the primary decision-maker - Otter Gold Mines Ltd v Australian Securities Commission (1997) 26 AAR 99; Liedig v Commissioner of Taxation (Cth) [1994] FCA 1058; (1994) 50 FCR 461; Commissioner of Taxation (Cth) v Swift [1989] FCA 413; (1989) 20 ATR 1434; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. However as was pointed out in Powell v The Administrative Appeals Tribunal and Anor [1998] FCA 1747; (1998) 89 FCR 1 at 12 (French J) the source of the AAT's power is s 43 of the AAT Act. It does not exercise afresh the power conferred by the enactment under which the decision was made. A fortiori, when it affirms a decision or sets it aside and remits it for reconsideration, it does not exercise a power conferred by the enactment under which the primary decision-maker has made his or her decision. See also Szajntop v Gerber (1992) 23 ATR 403 (Hill J). Analogous reasoning in Daher v Minister for Immigration and Ethnic Affairs (1996) 70 FCR 585 at 507 led North J to conclude that a decision of the Refugee Review Tribunal affirming a decision of the Minister to refuse a visa was not itself a decision to refuse the grant of the visa. The reasoning in Powell led to the conclusion that a decision of the AAT affirming a delegate's decision was not a judicially reviewable decision under the Migration Act and therefore was unaffected by the limitations on the jurisdiction of the Court imposed by Pt 8 as it stood prior to the amendments which came into effect in October 2001.
69 If s 501A is not construed against the statutory background under which powers are conferred on the AAT, it will have no operation at all with respect to the AAT for the AAT never exercises or declines to exercise a power under s 501. This is recognised in s 500(6L) which provides that if the Tribunal fails to make a decision under one or other of the relevant provisions of the AAT Act (including s 43) within 84 days of notification of the primary decision to the applicant it is taken "to have made a decision under s 43 of the AAT Act to affirm the decision under review". Section 501A must be construed by reference to the statutory context of which the AAT Act is part and under which the decisions of the AAT are made. That construction could, of course, be narrow, on the basis that s 501A(1)(c) only applies when the AAT makes a dispositive decision under s 43(1) which involves substituting its own decision for that of the delegate. Relevantly for this case, that would be a decision to decline to refuse the grant of a visa on the ground of want of satisfaction that the applicant had passed the character test. The narrow construction however does not serve the evident purpose of s 501A as it now stands.
70 In the present case the AAT set aside the delegate's decision and remitted it for reconsideration. Notwithstanding that the matter has to be reconsidered by the delegate, the AAT has, albeit under s 43, declined not to exercise the power conferred by subs 501(1) to refuse to grant a visa. Had it decided otherwise it would have affirmed the delegate's decision.
71 The preceding consideration leaves unanswered the question whether it is the amended form of s 501A(1)(c) to which the Court must have regard in this appeal. Counsel for Madafferi referred to s 8 of the Acts Interpretation Act which relevantly provides:-
"Where an Act repeals in the whole or in part a former Act, and unless the contrary intention appears the repeal shall not:.
.
.
(c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or
(d) affect any penalty forfeiture or punishment incurred in respect of any offence committed against any Act so repealed; or
(e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid;
and any such investigation legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed."
72 It was submitted that, notwithstanding the explicit retrospectivity of the amending rule, it should be read as not intended to affect litigation in progress. Counsel did not, however, move to a submission that a provision which had that effect would lack constitutional validity. The Migration Law Amendment Act (No 1) 2001 purports to alter the power of the Minister to set aside delegate and AAT decisions under s 501 by altering the description of the class of decision which may be set aside. Section 2(4) ensures that the widening of that class and of the power is retrospective. It is not merely a matter of redefining the class of decisions made since 1 June 1999 which the Minister could henceforth prospectively set aside. The section operates upon decisions which the Minister has actually taken. If they were beyond power, it validates them to the extent that the decisions he sets aside fall within the new category. It was not contended that retrospective validation of a decision under judicial review would be invalid for constitutional reasons. The legislative intention that the amendment should act retrospectively and in relation to ministerial decisions already taken, is plain and not qualified in relation to ministerial decisions currently the subject of judicial review. It follows that upon a purposive construction of s 501A as amended the Minister's power was enlivened and the first ground of appeal must fail.
73 It is useful to consider whether or not, in any event, the Minister had the power to make the decision he did at the time he did having regard to s 501A as it then stood. The resolution of that question depends upon whether the AAT decision to set aside the delegate's refusal to grant the visa and its remittal of the matter to the delegate amounted to the "grant of a visa to a person as a result of not exercising the power conferred by subs 501(1) to refuse to grant a visa to that person". The AAT decision was plainly not the grant of a visa. It left the question of grant to the delegate. That grant was not to be refused "...on character grounds solely on the basis of information presently available to the respondent". It allowed the possibility that it might be refused on other grounds or on additional information going to character. To characterise the decision of the AAT as falling within s 501A(1)(c) as it previously stood is to strain the language of the Act. Lehane J said as much in his decision at first instance in Lam. And yet as his Honour pointed out, s 501A(1)(c) was intended to apply in respect of decisions of the delegate and of the AAT. In neither case did the Act provide that the grant of a visa would follow as a result of not exercising the power under s 501(1) to refuse to grant the visa. Consistently with his Honour's construction, the words "grant a visa" in s 501A(1)(c) as it previously stood was to be equated to the non-exercise of the power under s 501(1) to refuse to grant a visa. A delegate who considered the application of the character test under subs 501(1) and, having considered it, did not exercise the power to refuse to grant a visa to the person would be treated as having granted a visa for the purpose of the ministerial power to set aside his decision. Similarly, the AAT which set aside the delegate's decision to refuse to grant a visa under s 501(1) would itself fall within s 501A(1)(c) albeit via the route of s 43 of the Administrative Appeals Tribunal Act. His Honour's construction, although strained, gave a workable operation to the provision which accorded with its evident purpose. In the circumstances, the first ground of appeal would fail upon the application of the Act as it stood prior to the amendment. The first ground of appeal fails whether it is the pre or post amendment version of s 501A(1)(c) that applies.
The Second Ground of Appeal - The No Evidence Ground
74 The no evidence ground encompassed grounds 3, 4, and 5 of the amended notice of appeal. As counsel for Madafferi said these grounds reduce to one point which relates to the Minister's reliance upon the outstanding sentence of four years eight months and six days said to be awaiting Madafferi in Italy.
75 In the Minister's statement of reasons for his decision published on 21 December 2000 he said, inter alia:
"3. Before exercising my discretion to set aside the original decision and making a decision to refuse the visa, I had formed a reasonable suspicion, under section 501A(2)(c), that Mr Madafferi did not pass the character test, due to the fact that in 1984 he was convicted of the crime of "attempted extortion" and was sentenced to 24 months imprisonment. I also took account of the fact that Mr Madafferi was convicted on four other occasions in 1980 and 1982, receiving sentences of 22, 30, 8 and 36 months imprisonment, and that he was sentenced in absentia in 1986 and 1993, and as a result, has a current arrest warrant in Italy, where he faces an outstanding sentence of 4 years 8 months and 6 days..
.
.
6. I then considered whether it was in the national interest for Mr Madafferi's visa to be refused. I took into account the comments provided by Mr Madafferi's legal representatives that there is nothing to suggest that removing Mr Madafferi from Australia would be in the national interest and that Mr Madafferi's input into Australian society has been, and continues to be beneficial. I also considered Mr Madafferi's criminal background and his past and present general conduct. I noted that the Italian authorities have issued a warrant of arrest for Mr Madafferi and that Mr Madafferi faces an outstanding sentence of 4 years 8 months and 6 days in Italy. I also considered the effect on Australia's `reputation' and `good name' in the international community should Mr Madafferi be allowed to remain. On balance, I found that due to the seriousness of Mr Madafferi's convictions and his outstanding warrant of arrest and sentence in Italy, it would be in the national interest to refuse his visa.
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12. I also considered the likelihood that the conduct may be repeated (including any risk of recidivism). I took into account the fact that the Italian authorities have issued a warrant of arrest which required Mr Madafferi to serve a consolidated sentence of 4 years, 8 months and 6 days imprisonment in respect of various unserved and previously suspended sentences."
76 Mr Madafferi had adduced evidence before the primary judge from an Italian lawyer, Francesco Antoniazzi. The effect of his evidence, as summarised in the submissions filed on Madafferi's behalf, was that:
"(i) The operation of Italian law in 1993 and 1995 resulted in various sentences being applied first in 1993 by reason of reversal of an amnesty applied to an earlier sentence(s) and secondly in 1995 by a sentence made in absentia some 12 years after the offence occurred. These two matters occurred whilst the Appellant was in Australia and resulted in a consolidated prison term of 4 years, 8 months and 6 days.(ii) Article 172 of the Italian Penal Code operates to extinguish a sentence not served by a subject that remains outstanding for a period of either 10 years or equivalent to double the term of imprisonment imposed whichever period is the greater.
(iii) The prosecution authorities in Italy by application dated 7 August 2000 had applied for an "Order of Extinguishment" in respect of the sentence of 4 years, 8 months, 6 days. This application came before a Court on 15 February 2001 which declared a sentence imposed on the Appellant be in part extinguished.
(iv) Following the declaration made 15 February 2000, the Italian Court further declared on the evidence of the Italian lawyer, that the remaining sentence to be served by the Appellant to be 1 year, 8 months and 6 days from August 2000.
(v) In respect of the sentence, 1 year, 8 months and 6 days, the Italian law operates so that if the Appellant does not commence to serve the remaining sentence before 19 May 2002, the remaining sentence will be extinguished on and after 19 May 2002 be (sic) operation of Article 172 of the Italian Penal Code after which time no further term of imprisonment will need to be served."
77 Mr Antoniazzi agreed in cross-examination that the declaration of extinguishment would not operate until it was made by a court. It was submitted to the primary judge that the Minister had based his decision on the fact that the Appellant had a current arrest warrant in Italy where he faced an outstanding sentence of four years, eight months and six days when in truth the outstanding sentence would inevitably be reduced on the determination by an Italian Court on the application by the Italian prosecution of 7 August 2000 and that, in any event, any sentence to which he was liable would expire if not commenced by 19 May 2002.
78 In his reasons for judgment his Honour noted that counsel for the Minister had submitted that the Minister emphasised the Italian warrant to indicate that it represented "unfinished business" with respect to past events in Italy. His Honour said:
"I agree. I do not consider the fact that Mr Madafferi faced a shorter sentence than that of four years, eight months and six days would impact upon the Minister's ultimate decision. The fact remained that he faced a prison sentence if he returned to Italy. An outstanding prison sentence was "other evidence or material" which justified the making of the decision." [42]
79 It was submitted that the question before the primary judge was whether the Minister based his decision on a particular fact and whether that fact existed, not what the Minister might have thought had the correct facts been before him. The Minister had acted upon the fact that the appellant faced the outstanding prison sentence at a time when prosecution authorities in Italy were in the process of reducing it. Further, it was said, the Minister acted on the fact that the sentence was immutable at a time when the prosecution authorities were seeking to reduce it and where, in any event, it would expire if not commenced by 19 May 2002.
80 The relevant ground of review under Pt 8 of the Migration Act as it stood prior to the amendments of October 2001 was to be found in s 476(1)(g) which provided:
"476(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:.
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(g) that there was no evidence or other material to justify the making of the decision."
This was to be read with subs 476(4):
"476(4) The grounds 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."
81 This ground of review reflects that in s 5(1)(h) of the Administrative Decisions (Judicial Review) Act as elucidated in s 5(3) of that Act. There being no suggestion that the Minister's view about the outstanding sentences in Italy concerned a matter of the kind contemplated by par (a), the only relevant part of s 476(4) for present purposes is par (b). That paragraph has been interpreted as meaning that a decision will be "based ... on the existence of a particular fact" if that fact is "critical" to the making of the decision - Curragh Qld Mining Ltd v Daniel [1992] FCA 44; (1992) 34 FCR 212 at 220 (Black CJ, Spender and Gummow JJ agreeing). The criticality requirement was derived from the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 357-358. That is not to say that the decision must turn on the impugned fact alone before the ground under s 476(1)(g) can be invoked:
"A decision may be based upon the evidence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion."
82 This ground does not, however, provide a doorway for review of a decision-maker's conclusions or inferences as though their content constituted "particular facts" whose existence could be controverted:
"The particular fact is to be distinguished from the ultimate fact in issue, or a conclusion based upon a series of particular facts, although one of those particular facts may qualify under s 476(4)(b)" - Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 34 at [34]; See also Minister for Immigration and Multicultural Affairs v Rajamanikkam [2000] FCA 1023; (2000) 179 ALR 495 at 502.
83 Paragraph 476(4)(b) states a necessary condition to be satisfied if the ground under s 476(1)(g) is to be made out. It is not a sufficient condition. For it must be shown that there was "... an absence of evidence or other material upon which the decision was based" - Curragh at 221. The requirements of s 476(1)(g) read with s 476(4)(b) were stated succinctly by the Full Court in Charaev v Minister for Immigration and Multicultural Affairs [2000] FCA 865; (2000) 178 ALR 554 at 557:
* the decision of the tribunal was based on a fact;* there was no evidence of that fact before the tribunal;
* the fact is disproved.
84 It was submitted on behalf of the Minister, there was evidence before him of the appellant's Italian criminal record. There was no suggestion that his liability under Italian law had changed or would change. In these circumstances it cannot be said that there was no evidence to justify the making of the decision. In any event, as the learned primary judge found, a fair reading of the Minister's reasons indicate that it was the fact of "unfinished business" in Italy rather than the particular length of the outstanding consolidated sentence that was of significance in the Minister's decision. Neither the criterion of criticality nor the requirement that there was "no evidence" before the Minister is satisfied. The no evidence ground is not made out.
The Third Ground of Appeal - The National Interest
85 This was designated as par 6 in the amended notice of appeal. In support of this ground it was submitted that it is a condition of the exercise of ministerial power to set aside the AAT decision and refuse the grant of a visa, that the Minister is satisfied that the refusal is in the national interest (s 501A(2)(e)). The criticism of the Minister's reasoning in this respect focussed on par 6 of his Statement of Reasons which has been set out earlier. This, it was said, revealed that the Minister took into account only the matters upon which he found Mr Madafferi to have failed the character test and the prospective "matters" which he faced in Italy. Having established that the reason for which Mr Madafferi failed the character test rendered the refusal of the grant "in the national interest" as an abstract question, the Minister, it was said, did not return to consider whether "the refusal" was in the national interest in the particular case. It was submitted that the Minister had failed to apply the staged decision-making process required by s 501. In essence his decision was based on the circumstances which resulted in Mr Madafferi not satisfying the character test. It did not turn on the particular circumstances justifying refusal of a spouse visa in the national interest as "involving a significant threat to the national interest as a whole community as a nation" - Re Patterson; Ex parte Taylor [2001] HCA 51; (2000) 182 ALR 657 at 743 (Kirby J). Reliance was also placed on the alleged error of the Minister in relying upon his finding that there was a consolidated sentence of four years, eight months and six days imprisonment awaiting Mr Madafferi in Italy. The Minister, it was said, erred in law because he regarded the failure of the character test as determinative of his decision.
86 The Minister in considering the national interest under s 501A(2) may properly have regard to the circumstances which underpin the failure to satisfy him that an applicant for a visa passes the character test. There may be circumstances in which the seriousness of a person's criminal history will be sufficient to satisfy the Minister that the refusal of a visa is in the national interest. In Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 409 the Full Court referred to the seriousness of the visa holder's crimes in that case and said:
"It is the seriousness of that conduct which has to be assessed in the national interest. Obviously enough, the national interest dictates that people who engage in sufficiently serious crime should not have the benefits of an Australian visa."
While, as Gaudron J observed in Re Patterson; Ex parte Taylor at 675 this does not mean that convictions which result in a person failing the character test are themselves sufficient to entitle the Minister to determine that it is in the national interest that a visa be cancelled convictions of a sufficiently serious character can lead to that conclusion. After observing that the terms of s 501(3), under consideration in that case, made it clear that national interest considerations are separate and distinct from the question whether or not a person passes the character test her Honour said:
"That is not to say that the matters which result in a person failing the character test may not also provide the foundation for the minister's satisfaction that it is in the national interest that that person's visa be cancelled."
87 Her Honour went on (at 676):
"To say that the conduct which leads a person to fail the character test may also provide the foundation for the minister's satisfaction that it is in the national interest to cancel his or her visa is not to say that it will always do so. Both issues must be considered separately. And where the same conduct is relied upon for both purposes, there must be something in the nature, or the seriousness of that conduct, or in the circumstances surrounding it to found a satisfaction that it is in the national interest to cancel the visa of the person concerned."
88 Kirby J in the same case accepted that the words "in the national interest" could not be given a confined meaning (at 742). As he said:
"However broad may be the jurisdiction conferred by the constitutional writs, they do not permit a court to substitute for the satisfaction of the minister, provided by the Act of Parliament, the satisfaction of judges who are not accountable to the Parliament or the people in the same way as the minister."
Nevertheless, in the particular case, he found it impossible to regard the matters placed before the Minister as sufficient to sustain a reasonable or rational conclusion that the cancellation of the prosecutor's visa was "in the national interest". His Honour set a high threshold for the enlivening of the national interest criterion by reference to the Minister's indication in the relevant second reading speech discussing the proposed power to be conferred upon him by s 501 that:
"... in exceptional or emergency circumstances, the minister, acting personally will be given powers to act decisively on matters of visa refusal, cancellation and the removal of non-citizens."
89 With respect to that view, the bar of national interest does not seem to be set that high by the words of the Act which must be the primary guide to legislative intention. The question of what is or is not in the national interest is an evaluative one and is entrusted by the legislature to the Minister to determine according to his satisfaction which must nevertheless be obtained "reasonably" - Re Patterson; Ex parte Taylor at 698 (Gummow and Hayne JJ, Gleeson CJ agreeing). Callinan J agreed with Kirby J that the constitutional writs do not entitle the judges to substitute for the satisfaction of the Minister the satisfaction of the judges (755).
90 In considering the national interest question in par 6 of his reasons, the Minister made reference to a number of factors:
* the submissions by Madafferi's legal advisers that his input into Australian society had been and continued to be beneficial;
* Madafferi's criminal background and his past and present general conduct;
* the warrant of arrest and outstanding sentence awaiting Madafferi in Italy;
* the effect on Australia's "reputation" and "good name" in the international community;
* the seriousness of Madafferi's convictions.
Given the range of other matters which the Minister's reasons canvassed, including the effect of removal from Australia on Mr Madafferi's family, his ties to the Australian community, the welfare of his children and other matters, there is a certain artificiality in separating out par 6 as though it represented the only way in which the Minister addressed the issue of national interest. There is nothing to suggest that the Minister has erred in law in his consideration of this factor and this ground of appeal therefore fails.
The Fourth Ground of Appeal - Fettering of Discretion
91 This ground was designated 7 in the amended notice of appeal. Section 499 of the Migration Act provides, inter alia:
"499(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:(a) the performance of those functions; or
(b) the exercise of those powers.
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(2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
(2A) A person or body must comply with a direction under subsection (1).
(3) The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given."
Subsections (1A) and (4) are not material for present purposes.
92 In his Statement of Reasons at par 8, the Minister said:
"I also proceeded in accordance with the Government's view on serious crimes as set out in my General Direction number 17 - "Direction Under s 499 Visa Refusal and Cancellation Under section 501 of the Migration Act" ("my Direction"). I still consider that my Direction properly indicates how I consider the powers and functions of the kind here under consideration should be exercised. In accordance with this I gave consideration to three primary considerations and other considerations."
93 As noted earlier (par 42) the primary considerations identified by the Minister were:
* the protection of the Australian community taking into account the seriousness and nature of Mr Madafferi's conduct and the likelihood that the conduct may be repeated (par 9);
* the expectations of the Australian community (par 16);
* the best interests of Mr Madafferi's three children aged 4, 7 and 9 (par 17).
94 General Direction No 17 is expressed as providing "... guidance to decision-makers in making decisions to refuse or cancel a visa under section 501 of the Migration Act 1958 ("the Act")". It acknowledges the two stage process involved in decision-making under s 501 stating:
"When a visa applicant or visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of the crimes committed, the non-citizen's links to Australia and any relevant international law obligations."
The Direction comprises two parts. Part 1 deals with the application of the character test. Part 2 provides directions on primary and other considerations to be taken into account in determining whether to refuse or cancel a visa and the weight to be given to those considerations.
95 In Pt 2 of the Direction which deals with the exercise of discretion where a non-citizen has not passed the character test, it is said, at par 2.2:
"2.2 The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraphs 2.3-2.16 and other considerations are set out at paragraphs 2.17-2.23. Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa. Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations."
Paragraph 2.3 then states:
"2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children."
96 Under the subheading, "Protection of the Australian Community", factors relevant to an assessment of the level of risk to the community from the entry or continued stay of a non-citizen are identified as including:
"(a) the seriousness and nature of the conduct;(b) the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence)."
Examples of offences considered by the Government to be "very serious" are set out in par 2.6. These include offences of murder, manslaughter, assault or any other form of violence against persons. Decision-makers are required to take into account as relevant considerations any relevant factors provided by the non-citizen as mitigating factors, whether the offence is or is not classified as an offence in Australia, whether a lighter sentence would be incurred in Australia for a similar offence and whether the non-citizen has been pardoned (par 2.8). Factors relevant to recidivism are set out at par 2.10. Also identified as a factor under the heading of "Protection of the Australian Community" is general deterrence which may be relevant in a number of ways:
(a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and
(b) the visa refusal or cancellation in respect of a non-citizen who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from engaging in similar schemes.
Under the heading "Expectations of the Australian community" the direction states:
"2.12 The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision-makers should have due regard to the Government's view in this respect."
97 The third primary consideration, "The best interests of the child" is also dealt with in the Direction in pars 2.13 to 2.16 inclusive. It is put that, in general terms, the best interests of a child will be served if the child remains with its parents. Countervailing considerations are identified, including a history of abuse or physical or emotional trauma arising from the non-citizen's conduct (par 2.15). In considering the best interests of the child, decision-makers are directed to have regard to a number of matters:
(a) the nature of the relationship between the child and the non-citizen;
(b) the duration of the relationship;
(c) the age of the child;
(d) whether the child is an Australian citizen or permanent resident;
(e) the likely effect of any separation from the non-citizen on the child;
(f) the impact of the non-citizen's prior conduct on the child;
(g) the time, if any, that the child has spent in Australia.
(h) the circumstances of the probable receiving country, including the educational facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non-citizen be permitted to enter or remain in Australia;
(i) any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and
(j) any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances.
98 After dealing with the primary considerations, the direction then refers to "OTHER CONSIDERATIONS" and states at par 2.17:
"When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that they be given less individual weight than that given to the primary considerations."
Other considerations are listed non-exhaustively and include:
(a) the extent of disruption to the non-citizen's family, business and other ties to the Australian community;
(b) genuine marriage to, or de facto or interdependent relationship with, an Australian citizen;
(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia;
(d) family composition of the non-citizen's family both in Australia and overseas;
(e) the likelihood of the non-citizen seeking to evade any outstanding legal matter or ongoing liability;
(f) the likelihood of the non-citizen breaching any conditions attached to the outstanding legal or ongoing matter, any cost or bilateral implications of such a breach (eg extradition);
(g) the nature and seriousness of the offence(s) or alleged offence(s) (in the context of seeking to evade an outstanding legal matter);
(h) any evidence of rehabilitation and any recent good conduct;
(i) whether the application is for a temporary visa or permanent visa;
(j) the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances;
(k) the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at s 200/201 of the Act or the visa refusal and cancellation provisions at s 501.
The Direction also refers to other international obligations.
99 The language of the Direction and the range of factors it requires to be taken into account is so broad that it is difficult to see how, even when treated as binding on officers of the Department, it could be said to fetter their discretion. It is not binding on the Minister. It was submitted for Mr Madafferi, however, that the vice in the Direction is that it codifies the weight to be given to three primary considerations to the extent that no other consideration such as the effect on the family unit or the fact that the offences were committed before arrival and other matters can ever prevail.
100 There is support in a number of single judge decisions for the submissions made on behalf of Madafferi. In Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514; (2001) 65 ALD 667 Dowsett J held that the predominance given to the primary considerations by Direction 17 rendered it inconsistent with the intention of s 501 that the discretion to cancel a visa be unfettered. His Honour accepted, however, that it was still necessary to determine whether the Minister's use of Direction 17 was such as to deprive his decision of validity. He was held in that case to have inappropriately followed the Direction by assuming that each primary consideration bore at least as much weight as each other consideration. Aksu was followed by Cooper J in Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648; (2001) 184 ALR 401. In Ruhl, unlike Aksu, there was no indication on the decision record that the Minister regarded himself as bound by the Direction. Cooper J held this was not the critical question. The question was whether the Minister "voluntarily applied the provisions of Direction 17 to his decision-making and thereby unlawfully fettered his discretion under s 501 of the Act" [32]. In Javillonar v Minister for Immigration and Multicultural Affairs [2001] FCA 854 Stone J held that both Aksu and Ruhl were correct in their interpretation of Direction 17, when binding on a delegate, as inconsistent with the discretion conferred by s 501. However this did not mean that its voluntary application by the Minister would constitute an error of law:
"For the applicant to succeed it would be necessary to show, not merely that the Minister was guided by the policy expressed in Direction 17, but that in making his decision the Minister attributed weight to factors in accordance with Direction 17 without independent consideration". [42]
Her Honour found that the Minister was guided by the Direction. The evidence however did not disclose the relative weight he applied to the various factors and whether he followed Direction 17 in that respect. Her Honour said:
"52. In summary, the problem with Direction 17 is that, contrary to s 499(2), it is inconsistent with the unfettered discretion given in s 501 because it purports to predetermine the relative weight to be given to various factors without the necessity of independent consideration of the relevant case. In the absence of any indication of the weight attributed to the factors relevant to Mr Javillonar's case, I am unable to conclude that the Minister did not give the necessary independent consideration to the relevant factors and therefore the ground of review under s 467(1)(e) is not made out."
101 In Turini v Minister for Immigration and Multicultural Affairs [2001] FCA 822 Whitlam J declined to follow Aksu and Ruhl holding that Part 2 of Direction 17 is not inconsistent with s 501(2). In the subsequent case of Jahnke v Minister for Immigration and Multicultural Affairs [2000] FCA 897, Drummond J agreed with what Whitlam J said in Turini about the reasoning in Aksu in so far as that case suggested that the primary considerations mentioned in Direction 17 were "direct outcomes" of a person failing to satisfy a decision maker that the person passed the character test. His Honour said at [21]:
"In some cases, proper effect may be able to be given to an individual's particular circumstances within the first two primary considerations, as Whitlam J suggests. But that will not always be the case. There may be cases in which evaluation of the circumstances relevant to the first two (or even to all three) primary considerations made, with varying degrees of cogency, favour visa cancellation, but one or more non-primary considerations may so strongly favour non-cancellation as properly to be regarded as requiring that result; yet the decision maker who is bound by, or who as minister voluntarily applies, the Direction would be prevented by the fetter on the statutory discretion contained in Part 2.2 of the policy from declining to cancel the visa."
He found, in the case before him, that if the Minister had not accepted the constraint imposed by the Direction on how he evaluated the primary considerations and other considerations the outcome of the case could have been different. The decision was set aside and the matter referred back to the Minister.
102 In a supplementary submission filed on 19 April 2002 the Court was referred to the decision of the Full Court in Awa v Minister for Immigration and Multicultural Affairs [2002] FCA 291. The Full Court was said not to have doubted the correctness of the earlier decisions in Aksu, Ruhl, Javillonar and Jahnke nor a like decision in Andarey v Minister for Immigration and Multicultural Affairs [2001] FCA 1544. The Full Court referred to the different view expressed by Whitlam J in Turini and did not doubt its correctness either. In truth the Court expressed no view saying at [37]:
"In our opinion the resolution of this appeal does not require any decision in relation to the validity of Direction No. 17 or conclusion of the issue whether the whole or part of the Direction fetters the discretion in s 501(1) of the Act, these being the two questions of law raised in the notice of appeal.. . .
In our view a proper reading of the reasons of the Tribunal shows that the Tribunal did in fact engage in a balancing exercise."
103 In this case the Minister did likewise. He was entitled to take the approach he did. It was consistent with the proper exercise of his discretion under s 501A. The primary considerations are so broadly expressed as hardly to exclude the consideration of virtually all relevant factors. To the extent that matters personal to the applicant or other factors may be thought to have fallen outside the scope of these considerations, it is useful to return to the terms of par 2.17. In respect of matters other than "primary considerations" it is accepted that they may be relevant and that where relevant "... it is appropriate that these matters be taken into account but that they be given less individual weight than that given to the primary considerations". The term "appropriate" does not preclude a different relative weighting being given to those matters. Nor does it preclude their combined weight from overcoming the primary considerations.
104 It is worth recalling the principle at issue here. That is the "... general principle that a Tribunal which is called upon to exercise a discretion does not perform its duty if it acts in blind obedience to a rule or policy that it had previously adopted" - R v Moore; Ex parte Australian Telephone and Phonogram Officers' Association [1982] HCA 5; (1982) 148 CLR 600 at 612 (Gibbs CJ, Stephen J agreeing). As Hill J said in Surinakova v Minister for Immigration and Ethnic Affairs [1991] FCA 596; (1991) 33 FCR 87 at 98:
"There can be no challenge to a decision merely because a decision was made in accordance with a policy. To ensure consistency of administrative decision-making, it will often be appropriate for a policy to be issued containing guidelines ... However a decision-maker must take care to ensure that he does not slavishly follow a policy."
105 It has not been demonstrated on behalf of Mr Madafferi that the Minister's discretion was fettered by his use of General Direction No 17. This ground of appeal also fails.
The Fifth Ground - Failure to have regard to preliminary discretion
106 The substance of this ground is reflected in the contention that the Minister did not direct any separate consideration to the question whether he should exercise his powers under s 501A. He merely considered how they should be exercised. This omission, it is said, prevented him from having proper regard, as a preliminary jurisdictional matter to s 501A(6) and to the consideration of other relevant matters, such as the interests of Mr Madafferi and his wife and children as a family, or the absence of any relevant conviction by Mr Madafferi while in Australia.
107 Counsel for the respondent submits that the argument is at odds with the very provision on which it seeks to rely. Section 501A(6) provides that the Minister has no duty to consider whether to exercise his power under subs (2). It cannot be said in any case that the Minister erred in law by failing to consider whether to exercise the power. Subsection (6) does not give rise to any "preliminary jurisdictional matter". It ensures that the Minister is free to exercise the power or not as he choses. The submission by the Minister is accepted. Section 501A(6) is intended to exclude the very argument that is now advanced. There is no threshold jurisdictional requirement on the part of the Minister to consider whether or not to exercise his power. This ground of appeal also fails.
Conclusion
108 For the preceding reasons, each of the grounds of appeal fails and the appeal will be dismissed with costs.
I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. |
Associate:
Dated: 17 July 2002
Counsel for the Appellant: |
Dr G Griffith QC and Mr T Hurley |
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Solicitor for the Appellant: |
Acquaro & Co |
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Counsel for the Respondent: |
Ms H M Symon SC and Mr S McLeish |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
13 November 2001 |
Date of Reconstitution of Court |
26 February 2002 |
Date of Last Submission |
22 April 2002 |
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Date of Judgment: |
17 July 2002 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2002/220.html