VWOK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 249 (2 December 2005)

Last Updated: 2 December 2005

FEDERAL COURT OF AUSTRALIA

VWOK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 249

MIGRATION – whether para 866.222A of Schedule 2 to the Migration Regulations 1994 is invalid as inconsistent with or repugnant to s 501 of the Migration Act 1958 (Cth)

Judiciary Act 1903 (Cth), s 39B
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5
Migration Regulations 1994 para 866.222A Sch 2
Migration Act 1958 (Cth) ss 31, 65, 501, 501H

VWOK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 336



























VWOK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
VID 363 OF 2005

HEEREY, FINKELSTEIN & ALLSOP JJ
2 DECEMBER 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 363 OF 2005

ON APPEAL FROM A DECISION OF A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	VWOK APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	HEEREY, FINKELSTEIN & ALLSOP JJ
DATE OF ORDER:	2 DECEMBER 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

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	VID 363 OF 2005

ON APPEAL FROM A DECISION OF A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	VWOK APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	HEEREY, FINKELSTEIN & ALLSOP JJ
DATE:	2 DECEMBER 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT

1 This is an appeal against orders of a judge of this Court dismissing an application made under s 39B of the Judiciary Act 1903 (Cth) and s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) in respect of a decision of a delegate of the Minister refusing to grant a Permanent Protection Visa class XA (subclass 866 (Protection)) and granting, instead, only a Temporary Protection Visa (subclass 785 (Temporary Protection)) (VWOK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 336).

2 The only substantive issue raised on the appeal is the validity of paragraph 866.222A of subclass 866 of Schedule 2 to the Migration Regulations 1994.

3 Paragraph 866.222A provides as follows:

In the case of an applicant referred to in paragraph 866.211(a), the applicant has not in the last 4 years, been convicted of an offence against a law of the Commonwealth, a State or Territory for which the maximum penalty is imprisonment for at least 12 months.

4 It was common ground that para 866.211(a) applied to the appellant.

5 The applicant is a male citizen of Burma (Myanmar). He arrived in Australia on 27 September 2000. After a refusal of a protection visa by a delegate of the Minister, the Refugee Review Tribunal (the "Tribunal"), on review, concluded that the applicant had suffered persecution in Burma in the past and that he had a well-founded fear of persecution should he return to Burma. Thus he was found to be a refugee within Article 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (the "Refugees Convention"). The Tribunal remitted the matter for reconsideration with a direction that the applicant was a person to whom Australia had protection obligations under the Refugees Convention.

6 The appellant has two convictions. Both were in the Perth Court of Petty Sessions on 21 June 2001. The first was that the appellant had in his possession a prohibited drug, namely cannabis, contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA). The second conviction was that he had in his possession a metal pipe for use in connection with the smoking of a prohibited plant, such metal pipe having detectable traces of a prohibited plant, namely a form of cannabis, contrary to s 5(1)(d)(i) of the same Act. The appellant was fined $100 and $50, respectively, for these offences. He pleaded guilty. The convictions were recorded by the Magistrate as "spent convictions" under the relevant sentencing legislation.

7 There was no debate on appeal that these two offences fell within the terms of clause 866.222A.

8 The primary judge concluded that the spent convictions were convictions for the purposes of para 866.222A and that the regulation was valid.

9 The only argument put on appeal as to any error of the learned primary judge was as to the validity of para 866.222A.

10 The only basis put on appeal for the invalidity of para 866.222A was its asserted repugnance to s 501 of the Migration Act 1958 (Cth). Section 501 provides for the refusal or cancellation of any visa on what are called "character grounds." It is in the following terms:

(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.

(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.

(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.

(8) For the purposes of the character test, if a person has been sentenced to periodic detention, the person's term of imprisonment is taken to be equal to the number of days the person is required under that sentence to spend in detention.

(9) For the purposes of the character test, if a person has been convicted of an offence and the court orders the person to participate in:
(a) a residential drug rehabilitation scheme; or
(b) a residential program for the mentally ill;
the person is taken to have been sentenced to a term of imprisonment equal to the number of days the person is required to participate in the scheme or program.

(10) For the purposes of the character test, a sentence imposed on a person is to be disregarded if:
(a) the conviction concerned has been quashed or otherwise nullified; or
(b) the person has been pardoned in relation to the conviction concerned.

(11) For the purposes of the character test, conduct may amount to harassment or molestation of a person even though:
(a) it does not involve violence, or threatened violence, to the person; or
(b) it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person.

(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 the punishment for an offence.

11 Section 501H, which was introduced into the Migration Act at the same time as s 501 (by Act no 114 of 1998), provides as follows:

(1) A power under section 501, 501A or 501B to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person.

(2) A reference in Part 5 to a decision made under section 501 includes a reference to a decision made under section 501A, 501B, 501C or 501F.

12 Relevantly for present purposes, s 501 can be seen to provide for a character test which may be the subject of consideration by the Minister. There is no duty in s 501 for the Minister to consider this issue. Relevant to the test are matters of a very general nature: the applicant’s past and present conduct, including, but not limited to, criminal conduct: s 501(6)(c). In certain circumstances a person will be taken not to pass the character test: s 501(6)(a) and (7). For instance, the test is taken not to be passed if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(6)(a) and (7)(c).

13 Section 31 of the Migration Act deals with classes of visas. It provides for prescribed classes (s 31(1)). Section 31(3) provides for regulations which prescribe criteria for visas, in the following terms:

The regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 36, 37 or 37A but not by section 33, 34, 35 or 38).

14 Section 65 of the Migration Act is in the following terms:

(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.


(2) To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3).

15 The appellant submitted that para 866.222A was invalid as inconsistent with, and repugnant to, the Migration Act, and in particular s 501 thereof. This was brought about, it was said, because it invaded the field which the Parliament had given to s 501 – refusal of visas for character grounds. Both s 501(6)(c) and (7)(c) dealt with the subject matter of convictions for criminal offences to which par 866.222A was directed. The effect of a failure of the appellant to satisfy the Minister of the criterion in par. 866.222A for a Permanent Protection Visa was that the Minister was obliged under s 65 to refuse to grant that visa. Thus, it was said, there was denied a role for the operation of s 501 in the possible refusal of that visa. That is, the Minister was denied an opportunity to consider whether she was satisfied that the character test had been passed, and, if she were not so satisfied, she was denied an opportunity to exercise the discretion in s 501 to refuse to grant the visa.

16 The direct relationship between ss 65 and 501 can be seen in the terms of s 65(1)(a)(iii).

17 Thus, it was said that, in practical terms, para 866.222A and s 501 both seek to operate on the same subject matter (a conviction) and in the same context (whether or not to refuse a visa). They cannot, it was said, do so consistently, because para 866.222A detracts from the operation of s 501 by precluding the exercise of a discretion not to refuse a visa notwithstanding the existence of a conviction. This was said to be a direct inconsistency and an encroachment on the area carved out by the legislature in s 501.

18 The learned primary judge dealt with this argument in [30] to [34] of her Honour’s reasons, as follows:

On this aspect, I accept the submissions on behalf of the respondent that cl 866.222A is not additional to or inconsistent with s 501 of the Act.

In providing for the respondent to exercise a special power to refuse or cancel a visa under s 501, where the respondent is not satisfied that an applicant passes the character test, the respondent can take into account `past and present general conduct´ as well as `past and present criminal conduct.´

There are other powers to cancel a visa (see s 118). The terms of s 501 do not evince any intention to exhaustively cover the circumstances in which a criminal record may be taken into account. Other sections of the Act, such as 91T and 91U also deal with criminal conduct. Section 501 does not contain criteria for the grant of a visa as does cl 866.222A. There is nothing repugnant to the Act in regulations containing certain specified criteria for certain specified visas as contemplated by s 31. Section 501 contains a power to refuse or cancel a visa; the power to grant a visa is provided in s 65 of the Act. Finally, cl 866.222A cannot be described accurately as a ` mandatory exclusion´ as it was in written submissions on behalf of the applicant. In its terms, the clause operates to preclude an applicant from obtaining a Permanent Protection visa in the circumstances covered. As there are no equivalent criteria in respect of a Temporary Protection visa, an applicant is not excluded from protection; rather an applicant does not obtain all the benefits of a Permanent Protection visa until the effluxion of four years in respect of convictions covered by the clause. It can be noted in this regard that cl 866.228(b) allows the Minister to specify in writing the requisite period for which the applicant needs to hold his Temporary Protection visa in the context of qualifying for a Permanent Protection visa. In the normal course the applicant will not be impeded by cl 866.222A after 21 June 2005. I accept that should the applicant seek to renew or expedite an application for a Permanent Protection visa after 21 June 2005, the nature of a spent conviction order and s 25(1) of the Spent Convictions Act and s 45(1) of the Sentencing Act are matters worthy of consideration having regard to the different provisions in respect of family sponsorship for Temporary and Permanent Protection visa holders. However, I express no views beyond that as the fate of any application made by the applicant under cl 866.228(b) is entirely a matter for the Minister.

There is nothing clearly inconsistent or clearly lacking in harmony in the coexistence of a power to refuse a particular class of visa for failure to satisfy certain criteria set out in subordinate legislation and a power to refuse to grant a visa on character grounds under the Act. The fact that each of s 501 of the Act and the Regulation in question refers to convictions, but deals with them differently, one from the other, reflects no more than their different purposes. Section 501 may be exercised independently of the satisfaction of criteria for a visa of a specified class. Clause 866.222A does not diminish, add to or derogate from the regime in s 501.

Thus, it seems to me that cl 866.222A does not impose distinct ` additional´ criteria to any requirements of s 501, and does not fall outside the regulation making powers under the Act; further it is neither an inconsistent piece of subordinate legislation nor does it create a regime for dealing with character, different from that provided in the Act. Accordingly, the authorities relied on for the applicant are all distinguishable: see Morton v Union Steamship Company of New Zealand [1951] HCA 42; (1951) 83 CLR 402; Ira, L & LC Berk Ltd v The Commonwealth (1930) 30 SR (NSW) 119 and Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245. In my view cl 866.222A is valid subordinate legislation.

19 We agree with her Honour’s analysis. Further, from the terms of s 501, the terms of s 501H and the Explanatory Memorandum for the Bill, the passing of which introduced ss 501 and 501H into the Migration Act, s 501 can be seen as a power available to the Minister additional to all other powers of refusal and not intended to carve out a particular field of criminal conviction or character generally as relevant matters in the grant or refusal of a visa.

20 The structure of the Migration Act is such as to give a central role to the prescription by the Executive of criteria necessary to be satisfied for the grant of a visa. Sections 31 and 65 reflect that.

21 Section 65, of course, requires the grant or refusal of a visa, depending upon whether the Minister is satisfied of all relevant criteria. The grant or refusal of the visa nevertheless answers the description of the exercise of a power under the Migration Act notwithstanding the mandatory nature of its exercise, depending upon the relevant state of satisfaction. Thus, s 501H can be seen as making clear, what can otherwise be gleaned from s 501 and the structure of the Migration Act, that s 501 is additional to all other bases to refuse a visa, and is not intended to restrict, by the terms of its field of operation, the fields of operation of other sections of the Migration Act, whether by reference to their own terms or the delegated legislation upon which they work.

22 For these reasons the appeal should be dismissed with costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Finkelstein & Allsop.

Associate:

Dated: 2 December 2005

Counsel for the Appellant:	Mr H Borenstein SC with Mr R Niall
Solicitors for the Appellant:	Ryan Carlisle Thomas
Counsel for the Respondent:	Mr A L Cavanough QC with Mr R Knowles
Solicitors for the Respondent:	Clayton Utz
Date of Hearing:	11 November 2005
Date of Judgment:	2 December 2005