Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 84 (11 May 2005)

Last Updated: 2 November 2005

FEDERAL COURT OF AUSTRALIA

Hicks v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCAFC 84

MIGRATION – judicial review – refusal of visa – New Zealand citizen – special category visa – cancellation of visa on character grounds – departure of visa holder from Australia pending judicial review – cancellation subsequently quashed – visa holder re-entered Australia – special category visa to remain in Australia refused on character grounds – effect of quashing order on previous visa – retrospective nullification – whether visa cancellation in effect at time of departure from Australia – whether cessation provisions applicable on departure took effect – whether cancelled visa ‘revived’ with effect after departure by operation of quashing decision – character criterion for grant of special category visa – whether character criterion for grant of visa displaces application of wider character test in s 501 for discretionary refusal of visa – whether breach of natural justice – protected information – mistake of fact – whether jurisdictional error – appeal dismissed.


Migration Act 1958 (Cth) s 29(1), s 32, s 5, ss 65(1) and (2), s 501(6)



Minister for Immigration & Multicultural & Indigenous Affairs v Hicks [2004] FCAFC 114 cited
Plaintiff S157/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 2; (2003) 211 CLR 476 cited
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 187 ALR 117 cited
Telstra Corporation Limited v Seven Cable Television Pty Ltd [2000] FCA 1160; (2000) 102 FCR 517 cited




STEPHEN EDWARD HICKS v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
WAD 2 OF 2005


FRENCH, MARSHALL AND MANSFIELD JJ
11 MAY 2005
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD2 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

BETWEEN:	STEPHEN EDWARD HICKS APPELLANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH, MARSHALL AND MANSFIELD JJ
DATE OF ORDER:	11 MAY 2005
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant is to 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
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD2 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

BETWEEN:	STEPHEN EDWARD HICKS APPELLANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	FRENCH, MARSHALL AND MANSFIELD JJ
DATE:	11 MAY 2005
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT:
Introduction

1 This appeal concerns the refusal, by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, to grant Stephen Hicks, a New Zealand citizen, who arrived at Sydney Airport on 6 August 2003, a visa to remain in Australia. Mr Hicks had lived in Australia from 1986 to January 2003. As a New Zealand citizen he had a special category visa permitting him to remain in Australia indefinitely. However that visa was cancelled in 2002 because of prison sentences imposed on him in respect of offences committed in Western Australia. The cancellation of that visa was quashed by a decision of this Court in July 2003. In the meantime however Mr Hicks had returned to New Zealand.

2 Having successfully challenged the cancellation of his visa he sought to return to Australia in August 2003. He was refused a visa on return by a delegate of the Minister on the basis of his alleged links with the Rebels Motor Cycle Club. By reason of that association he was said not to pass the character test prescribed by the Migration Act 1958 (Cth). A person who fails to pass the character test may have a visa application refused or an existing visa cancelled by the Minister as a matter of discretion.

3 Mr Hicks commenced judicial review proceedings challenging the refusal. His application for judicial review was dismissed by a judge of this Court and he now appeals.

4 Mr Hicks contends that because he successfully challenged the cancellation of his original visa it was still in effect when he returned to Australia and he should have been allowed to remain in Australia on the strength of that visa. Alternatively, he argues that the character grounds for refusing a visa to a New Zealand citizen are the limited grounds specified in relation to that particular class of visas and do not extend to the crimes of more general character grounds on which his visa was refused. He also says that the direction to refuse him a visa was made unfairly and that it was based upon a mistaken belief by the delegate that he had admitted to a current association with the Rebels Motor Cycle Club.

5 After hearing argument on the morning of 11 May, the Court reserved its decision to the afternoon and delivered its reasons orally, dismissing the appeal with costs. We now publish those reasons.

Factual and Procedural Background

6 Stephen Edward Hicks was born in New Zealand on 8 July 1972 and is a citizen of that country. With his family he came to Australia in December 1986 when he was 14 years of age. He attended the Kambalda Senior High School to Year 10 and then undertook a boiler maker’s apprenticeship. Although he has had a number of short absences from Australia he lived in this country until his departure in January 2003 which followed the cancellation of his visa, albeit that cancellation was then subject to judicial review proceedings in this Court.

7 Mr Hicks was convicted of a number of criminal offences between 1989 and 2001. On 31 January 2001, he was convicted of and sentenced for refusing to give his name and resisting arrest. At the same time he was sentenced in respect of matters to which he had earlier received suspended terms of imprisonment for ten months and six months. He was sentenced to serve ten months and six months imprisonment respectively in relation to those earlier matters with a direction that the period of six months be served concurrently with the period of ten months.

8 On 26 November 2002, the Minister for Immigration and Multicultural and Indigenous Affairs decided to cancel Mr Hicks’ visa. At that time, by reason of his status as a New Zealand citizen, Mr Hicks was the holder of a subclass TY444 (special category) visa pursuant to s 32(1) of the Migration Act 1958 (Cth) and reg 5 of the Migration Regulations 1994. The visa is designated as a temporary visa by virtue of s 32. Regulation 444.511 provides that it is a ‘temporary visa permitting the holder to remain in Australia while the holder is a New Zealand citizen’.

9 On 26 November 2002, the Minister decided, under s 501(2) of the Act, to cancel the visa on the basis that he reasonably suspected Mr Hicks did not pass the character test in s 501(2)(a) of the Act and that he had not been satisfied by Mr Hicks that he did in fact pass that test. The basis upon which Mr Hicks was found not to pass the character test was that he had a ‘substantial criminal record’ within the meaning of s 501(7). Under that section a person is deemed to have a substantial criminal record if he or she has been sentenced to two or more terms of imprisonment (whether on one or more occasions) where the total of those terms is two years or more.

10 His visa having been cancelled, Mr Hicks was detained pursuant to s 189 of the Act as an unlawful non-citizen. That detention commenced on 20 December 2002. On 30 December 2002 he instituted proceedings in the Federal Court for certiorari and prohibition in respect of the cancellation decision. He decided that rather than remain in detention pending the hearing and determination of the application he would return voluntarily to New Zealand and did so on 19 January 2003, travelling on an air ticket which he purchased himself.

11 The application for certiorari was heard on 3 June 2003. On 21 July 2003, orders were made in the following terms by French J:

‘1. Certiorari issue to quash the respondent’s decision made on 26 November 2002 to cancel the applicant’s visa.
2. The respondent be prohibited from acting upon the said decision.’

12 The basis upon which the application was successful was that the Minister had wrongly added together concurrent sentences in determining the total sentence of imprisonment imposed upon Mr Hicks. An appeal to the Full Court of the Federal Court was dismissed on 7 May 2004 – Minister for Immigration & Multicultural & Indigenous Affairs v Hicks [2004] FCAFC 114. The Minister’s application for special leave to appeal was dismissed by the High Court on 4 February 2005.

13 In the meantime, Mr Hicks endeavoured to re-enter Australia. He travelled from New Zealand to Sydney airport on 6 August 2003. At Sydney airport a delegate of the Minister interviewed him and then made a decision to refuse to grant him a special category visa. The visa being sought was a visa to remain in Australia. A New Zealand citizen does not require a visa to enter Australia. The refusal decision was made pursuant to s 501(6)(b) of the Act. Section 501 of the Act authorises the Minister (or his delegate) to refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. Section 501(6) provides, among other things, that a person does not pass the character test if:

‘(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;’

14 The Minister’s delegate issued Mr Hicks with a notice of visa refusal under s 501 of the Act. In that notice he said:

‘You were interviewed on 06 August 2003. Your comments were carefully considered and taken into account. The delegate of the Minister for Immigration & Multicultural Affairs has, after exercising their (sic) discretion, decided to refuse the grant of visa to you pursuant to s 501(1) of the Act. The particular ground under which you do not pass the Character Test is s 501(6)(b) of the Act, as you have an association with a person, group, or organisation involved in criminal conduct, namely by your own admission you have an association to an outlaw motor cycle group known as the ‘Rebels’.’

The following day Mr Hicks was put on a plane back to New Zealand.

15 On 14 August 2003, Mr Hicks commenced proceedings in this Court challenging the refusal of the visa on 6 August 2003. In an interlocutory judgment delivered on 22 March 2004, Nicholson J refused his motion for interlocutory relief restraining the Minister from relying on the validity of the decision. An application for leave to appeal against the orders of Nicholson J was refused by a Full Court on 12 August 2004 – Hicks v Nixon [2004] FCAFC 223. The substantive application for review of the visa refusal decision was dismissed by Nicholson J on 17 December 2004. Mr Hicks filed a notice of appeal against that decision on 7 January 2005.

The Statutory Framework

16 The Minister is empowered to grant visas by s 29 of the Act. That provides, in s 29(1), inter alia:

‘Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following:

(a) travel to and enter Australia;
(b) remain in Australia.’

17 Section 32 provides for special category visas. It is in the following terms:

‘(1) There is a class of temporary visas to be known as special category visas.

(2) A criterion for a special category visa is that the Minister is satisfied the applicant is:

(a) a non-citizen:

(i) who is a New Zealand citizen and holds, and has shown an officer, a New Zealand passport that is in force; and
(ii) is neither a behaviour concern non-citizen nor a health concern non-citizen; or

(b) a person declared by the regulations, to be a person for whom a visa of another class would be inappropriate; or

(c) a person in a class of persons declared by the regulations, to be persons for whom a visa of another class would be inappropriate.’

18 The term ‘behaviour concern non-citizen’ is defined in s 5 of the Act. It is in the following terms:

‘behaviour concern non-citizen means a non-citizen who:

(a) has been convicted of a crime and sentenced to death or to imprisonment, for at least one year; or

(b) has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year if:

(i) any period concurrent with part of a longer period is disregarded; and
(ii) any periods not disregarded that are concurrent with each other are treated as one period;

whether or not:

(iii) the crimes were of the same kind; or
(iv) the crimes were committed at the same time; or
(v) the convictions were at the same time; or
(vi) the sentencings were at the same time; or
(vii) the periods were consecutive; or

(c) has been charged with a crime and either:

(i) found guilty of having committed the crime while of unsound mind; or
(ii) acquitted on the ground that the crime was committed while the person was of unsound mind;

(d) has been removed or deported from Australia or removed or deported from another country; or

(e) has been excluded from another country in prescribed circumstances;’

19 Section 32 does not specify whether the special category visa for which it provides is a visa to travel to and enter Australia or to remain in Australia. Section 31(4) authorises regulations which may prescribe whether visas of a specified class are visas to travel to and enter Australia or to remain in Australia or both. Under cl 444.511 of Schedule 2 the subclass 444 visa is a temporary visa which permits its holder to remain in Australia while the holder is a New Zealand citizen.

20 Section 65 of the Act which deals generally with the exercise by the Minister of the power to grant or refuse to grant visas provides, inter alia:

(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.’

Section 65(2) is not relevant for present purposes.

21 The termination of visas is dealt with in s 82. That provides, inter alia:

‘(1) A visa that is cancelled ceases to be in effect on cancellation.

...

(8) A visa to remain in, but not re-enter, Australia that is granted to a non-citizen in Australia ceases to be in effect if the holder leaves Australia.’

22 The power of the Minister to refuse to grant a visa to a person under s 501 of the Act has already been referred to. It is enlivened upon the Minister failing to be satisfied that the person passes ‘the character test’ (s 501(1). There are a number of ways in which a person may fail to pass the character test. These are set out in s 501(6). It provides, inter alia:

‘(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.’

23 The substantial criminal record criterion relates to, inter alia, specific sentences that may have been imposed upon a person in respect of offences.

The Delegate’s Decision

24 The delegate, Mr Nixon, interviewed Mr Hicks at the airport on 6 August 2003. Before the interview he made comments to Mr Hicks which he recorded in what were referred to as ‘pre-interview’ contemporaneous notes. The comments included:

‘I advised Hicks of the following;

‘You have declared criminal convictions and I also wish to speak to you about your association to the Rebels Outlaw Motor Cycle Gang (OMCG).’

Hicks said,

I am no longer a member, I went to NZ to live, my Mrs didn’t like it so we came back.’

I advised that I would be interviewing him about his activities’

And further he said to Hicks, according to the pre-interview notes:

‘I propose to interview you shortly, you should be aware that I hold information from law enforcement agencies about you and the Rebels. I am not required to advise you of the content, I also hold a document from a Court in WA in which the Court was advised that you were a member of the Rebels.

Hicks said, I don’t know what was said in Court, I was not here, I was not in the country.’

This seems to reflect a misunderstanding by Hicks that the delegate was referring to proceedings in the Federal Court.

25 At the interview the delegate made handwritten notes of the questions he put and the answers that were given by Mr Hicks. The following day, on 7 August, he wrote up the questions and answers as part of a report entitled ‘Immigration Inspector’s Report’. A number of the question which he put and the answers which Mr Hicks gave dealt, inter alia, with whether he had any association with the Rebels Motor Cycle Club. There were some variations between the handwritten version and the typed up version of the questions and answers in his report. The following, so far as they are legible, is taken from the handwritten version of the questions and answers:

‘Q1. Are you a member of the Rebel motor cycle gang?
A. At present NO, obviously you know that I was.
Q2. When were you a member of the Rebels motor cycle gang?
A. From 1997 to 2000.
Q3. What was your association to this gang?
A. I liked to ride my bike around.
Q4. What activity does the motor cycle gang undertake?
A. Promote motor cycles, have shows, raise money for charity.

Q5. Have you ever been charged with offences whilst you have been a member of this gang?
A. These charges here [Mr Hicks at this point indicated the criminal history details he had declared]
Q6. Where did the offences occur?
A. Karratha, court was in Perth.
Q7. - the handwritten version of this question was difficult to read. The typewritten version was as follows:

I wish to advise you that in court in 2001 it was stated that you were a member of the Rebel motor cycle club. Is that correct?
A. I don’t know I was not there. I was in NZ.’

It appears that Mr Hicks again may have misconstrued this question as referring to the Federal Court proceedings rather than the criminal court proceedings.

26 The balance of the questions related to his marriage, the location of his children and other matters not relevant for present purposes.

27 In the delegate’s decision record for refusal of the visa which was dated the same day, 6 August 2003, it was stated in Part B under the heading ‘CONSIDERATION OF VISA REFUSAL’, that the relevant ground for the refusal to grant the visa was subpar 501(6)(b) – association with person, group or organisation involved in criminal conduct. Under the subheading ‘Evidence of Grounds’ he wrote:

‘On public record (court transcripts dated 22 February 2001) Mr Hicks provided evidence before a court that he was a member of the Rebels Outlaw Motor Cycle Gang (OMCG).

Criminal intelligence from Law Enforcement Agencies on the profile of the Rebels OMCG on their involvement in criminal activity. This information falls within the provisions of s503(A) of the Migration Act being information which is non-disclosable information.’

It may be noted that the designation Rebels Outlaw Motor Cycle Gang did not appear to be one adopted by the relevant motor cycle organisation.

28 Under the heading ‘ASSESSMENT FOR REFUSALS’ Mr Nixon posed a number of questions for himself and set out the answers to them. They were as follows:

‘Q1. Do you reasonably suspect that a person, group organisation is or has been involved in criminal conduct?(sic)

YES

The Rebels OMCG is an organisation known to be involved in criminal activity.

Q2. Does the non citizen have, or did they ever have, an association with the person, group or organisation referred to in the answer to question 1?

YES

By his own admission, Mr Hicks is a member of the Rebels OMCG. Therefore there is direct evidence which links Mr Hicks to this outlaw motor cycle gang. I also accept that the intelligence from law enforcement agencies is credible and reliable. There is also a public record from a court of linking Mr Hicks to this outlaw motor cycle gang.

Q3. After having given the non citizen the opportunity to comment, does the non citizen satisfy you that they pass the character test?

NO

Q4. Do you choose to exercise your discretion and not refuse the grant of a visa?

NO’

Under the heading ‘DECISION’, Mr Nixon wrote:

‘I have considered all relevant matters including (1)an assessment of the Character Test within the meaning of s501 Migration Act 1958, (2) the Ministers (sic) Direction under s499 of the Act and the non citizen’s comments (if any), and have decided that:

(a) the non citizen does not pass the character test, has been unable to satisfy me that they do pass the character test and is refused the grant of visa.’

The notice of this refusal of a visa, which was issued to Mr Hicks on the same day, has already been referred to and the relevant passage from it set out.

29 The day following his decision, the delegate prepared a typed ‘Immigration Inspector’s Report’ which has already been mentioned in passing. The report recorded that following the termination of the interview at 6.55pm the following took place:

‘IN CONSIDERATION OF THE APPLICATION AND THE APLICATION (SIC) OF THE CHARACTER PROVISIONS I TOOK INTO COUNT (SIC) THE ‘LINK’ OR ‘CONNECTION’ TO THE GROUP. BY HIS OWN ADMISSIONS AND PUBLIC RECORD THERE WAS EVIDENCE THAT HE WAS A MEMBER OF THE REBEL OUTLAW MOTORCYCLE GANG (OMCG). I ALSO TOOK INTO (SIC) HIS STATEMENT THAT HIS FRIENDS WERE IN THE REBEL OMCG AND HE STILL OWNED A MOTROCYCLE (SIC) AND ENJOYED THE ACTIVITIES OF THE CLUB

WHILST THE APPLICANT MAINTAINED HE HAD LEFT THE CLUB IN 2000, CLEARLY IN 2001 ARGUMENTS WERE PUT FORWARD FOR HIS DEFENCE BEFORE A COURT THAT HE WAS A MEMBER OF THE REBEL OMCG

I ALSO TOOK INTO CONSIDERATION THAT THERE WAS OTHER INFORMATION WHICH FALLS INTO NON-DISCOLSABLE (SIC) INFORMATION UNDER S503A OF THE MA. THIS INFORMATION PROVIDED SUBSTANTIAL MATERIAL TO SUPPORT HIS ASSOCIATION TO THE REBEL OMCG.

I THEREFORE DID NOT ACCEPT HIS CLAIM THAT HE NO LONGER HAD ANY ASSOCIATION TO THIS GROUP.
I CONSIDERED THAT THE NON-DISCLOSABLE INFORMATION BEFORE ME WAS BOTH CREDIBLE AND RELIABLE.

AS SUCH I CONSIDERED THERE WAS SUFFICIENT MATERIAL BEFORE ME TO HAVE A REASONABLE SUSPICION THAT THE APPLICANT HAD AN ASSOCIATION TO A GROUP OR ORGANSATION (SIC) THAT WAS INVOLVED IN CRIMINAL ACTIVITY.’

30 The report went on to indicate that the delegate chose not to exercise his discretion in favour of Mr Hicks as the information about the Rebel OMCG was of a serious nature including violent and criminal activity. He considered Mr Hicks’ association would continue and the likelihood that he would engage in criminal activity was ‘extremely high’. To refuse the visa would be a general deterrent to other persons who might wish to enter Australia and engage in criminal activity.

Decision of the Primary Judge

31 Four issues were raised before the primary judge as grounds for review of the refusal of the visa. They were in substance as follows:

1. That the criterion relating to ‘behaviour concern non-citizen’ referred to in s 32 of the Act is exhaustive of the character requirements of New Zealand citizens seeking to enter Australia. On that basis it was submitted that there is no room for the application of the character provisions in s 501(6)(b).
2. The second issue raised before the primary judge was that at the time Mr Hicks left Australia on 19 January 2003 he was not the holder of a visa because the Minister’s cancellation decision was still in effect. On that basis it could not be said that s 82 operated to cause the visa to cease to be in effect. The judgment given in July 2003 which quashed the Minister’s decision had the effect of ‘reviving’ the special category visa which remained in place at the time that Mr Hicks returned to Australia.
3. There was an alleged want of procedural fairness because the basis upon which Mr Nixon, the delegate, suspected that the Rebels had been involved in criminal conduct and that Mr Hicks had an association with the Rebels was never articulated or put to him to deny.
4. It was said that in refusing the grant of a visa the delegate was not entitled to rely upon s 501(6)(b) because the bases upon which notification of intention to cancel the special category visa had been given in July 2001 did not include s 501(6)(b).

32 The learned primary judge rejected all of these contentions and dismissed the application.

The Grounds of Appeal

33 The notice of appeal was amended by leave at the commencement of the hearing. It is not necessary to set out all the grounds in the notice. They raise the following contentions reflecting the issues decided by the primary judge:

1. Mr Hicks’ special category visa had not ceased to be in effect when he sought to return to Australia in August 2003. The Minister’s decision to cancel that visa, not having been quashed when he departed in January 2003, the cancellation was effective to the extent that the visa could not then be said to have ceased by reason of that departure.
2. The definition of ‘behaviour concern non-citizen’ in ss 5 and 32 of the Act is exhaustive of character requirements for a New Zealand citizen applying for a special category visa. The provisions of s 501 do not apply to authorise the refusal of a visa to a New Zealand citizen on character grounds.
3. There was a breach of the requirements of natural justice because the delegate concluded that the appellant was, on 6 August 2003, a person who ‘is a member of the Rebel Outlaw Motor Cycle Gang’ and did so by reference to protected information within s 503A(1) of the Act without giving Mr Hicks an opportunity to respond to the issue.
4. The decision to refuse a special category visa involved jurisdictional error in that the delegate based it on a fact that did not exist, namely that Mr Hicks had ‘admitted to a current association with the Rebels Motor Cycle Group’.

Whether the appellant was the holder of a visa which ceased to be in effect upon his departure from Australia in January 2003

34 The decision made on 21 July 2003 to quash the ministerial cancellation of Mr Hicks’ special category visa, was based upon the Minister’s misconstruction of the provisions of the character test under s 501. That misconstruction related to the definition of ‘substantial criminal record’ in its application to concurrent terms of imprisonment. The definition was held not to authorise a finding of a ‘substantial criminal record’ upon the basis of a summing of terms of imprisonment imposed concurrently with each other.

35 In quashing the Minister’s decision the Court referred to the source of its jurisdiction and the effect of the judgment of the High Court in Plaintiff S157/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 2; (2003) 211 CLR 476. Notwithstanding the provisions of s 474 of the Act which protect from judicial review decisions made under the Act, the protection does not extend to decisions infected by jurisdictional error. Such a reading was possible in Plaintiff S157 because, as the High Court had previously held, an administrative decision involving jurisdictional error is ‘regarded in law, as no decision at all’ – Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 187 ALR 117.

36 In Plaintiff S157, McHugh, Gummow, Kirby and Hayne JJ said (at 506):

‘Once it is accepted, as it must be, that s 474 is to be construed conformably with Chapter III of the Constitution, specifically, s 75, the expression ‘decision[s]... made under this Act must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is ‘regarded in law, as no decision at all’, Thus, if there has been jurisdictional error because, for example, of a failure to discharge ‘imperative duties’ or to observe ‘inviolable limitations or restraints’ the decision in question cannot be properly described in the terms used in s 474(2) as ‘a decision ... made under this Act’ and is, thus, not a ‘privative clause decision’ as defined in s 474(2) and (3) of the Act.’

37 In finding in favour of Mr Hicks at first instance in the earlier proceedings challenging the cancellation of his visa, French J said at [78]:

‘The basis upon which the Minister concluded that Mr Hicks did not pass the character test was that set out in s 501(6)(a) read together with s 501(7)(d). His misconstruction of the latter provision means that he did not address the question which he was required to address in determining whether he had the necessary suspicion under s 501(2). The satisfaction of that condition is essential to the effective exercise of the power under s 501(2). It cannot be construed as a non-essential condition by reference to s 474 of the Act. So to do, would be to construe s 474 as conferring upon the Minister an unconditional power to cancel visas.’

38 An unqualified doctrine of absolute nullity or voidness ab initio in the case of decisions infected by jurisdictional error may lead to practical difficulties. The question is discussed at some length in Aronson, Dyer and Groves, Judicial Review of Administrative Action, 3^rd Edition (2004) at Chapter 10. There is a sense in which no decision is invalid until so declared by a court. The quashing of a decision for jurisdictional error however has the effect of what has been called ‘retrospective nullification’. In Telstra Corporation Limited v Seven Cable Television Pty Ltd [2000] FCA 1160; (2000) 102 FCR 517 at 544 the Full Court said (omitting references to authorities):

‘Whilst there may be a question as to whether an administrative act is void or voidable, and as to the significance and effect of such an act pending a declaration of invalidity by a court ... it is fundamental that the purported exercise of a statutory power which does not accord with the statute is of no effect and may be disregarded – it does not impose duties or create rights. For certain (interlocutory) purposes, an administrative act may be presumed regular until set aside ... Once a court has declared the invalidity then it follows that the act is avoided ab initio ... like a statute which is declared invalid if it is beyond power... A possible exception to this principle is the so called de facto officers doctrine, which has no relevance here.’

39 The finding of the Court at first instance in the successful proceedings brought by Mr Hicks was that the Minister did not exercise the power conferred upon him by the Act because he misconstrued the conditions under which it could be exercised. The special category visa is therefore to be treated, for present purposes, as though it was on foot at all material times. It is a consequence of that treatment that the visa must be taken to have ceased to have effect upon Mr Hicks’ departure from Australia in January 2003. That cessation operates by virtue of s 82(8) of the Act. The contrary contention involves the argument that the visa, by virtue of the Minister’s decision did not exist at the time that Mr Hicks left Australia but sprang into existence again at the time that the Court quashed the Minister’s decision. That argument, in our opinion, is inconsistent with the effect of the quashing order and the principles enunciated in the Telstra case and the authorities there cited.

Whether s 32 is exhaustive of the criteria relating to character upon which a New Zealand citizen may be refused the grant of a special category visa.

40 The argument advanced in support of this ground was that the definition of ‘behaviour concern non-citizen’ in s 5 of the Act covered the character concerns relating to citizens of New Zealand applying for special category visas to the exclusion of the character test found in s 501(1).

41 This argument may be disposed of shortly. Satisfaction of the criterion, set out in s 32, read with s 5, relating to a behaviour concern non-citizen is a necessary condition of the grant of a special category visa. The definition of ‘behaviour concern non-citizen’ is in precise terms which do not allow for any evaluative judgments. It is applied by reference to matters essentially of public record. On the other hand the character test set out in s 501(6) does not inform any criterion which is a necessary condition for the grant or refusal of a visa. Rather, it defines circumstances under which the Minister’s power to refuse or cancel a visa, as a matter of discretion, is enlivened. Although the term ‘substantial criminal record’ involves, like the concept of ‘behaviour concern non-citizen’, matters of public record, the ‘character test’ as a whole covers a much broader range of considerations. These considerations include, as in the present case, the existence of an association with a group or organisation reasonably suspected of being involved in criminal conduct. It also attracts consideration of a range of other matters and risks of adverse behaviours by persons who may never have been convicted of any offence. The proposition may be tested this way. Were Mr Hicks’ argument to be correct then the grant of a special category visa would be mandated to any New Zealand citizen without criminal convictions notwithstanding the existence of a significant risk that such a person would engage in criminal conduct in Australia or represent a danger to the Australian community in the ways set out in s 501(6)(d)(v). The appellant therefore fails on the second issue.

Whether there was a failure of natural justice.

42 It was contended for Mr Hicks that the Act required the delegate to afford him natural justice in deciding to refuse his visa. The delegate, it was said, relied on protected information in reaching whatever conclusion he did. The provisions relating to protected or non-disclosable information, it was submitted, do not exclude the obligation to provide natural justice. They do not excuse the failure of the delegate to communicate to the appellant the gravamen of the information which ‘provided substantial material to support his association to the Rebel Motor Cycle Gang’.

43 It is sufficient to say that the pre-interview remarks and the record of the interview conducted with Mr Hicks by the delegate indicate that the question of his association with the Rebel Motor Cycle Gang was put squarely to him and that he had an opportunity to respond to it. Having regard to the provisions relating to protection of information supplied by Law Enforcement Agencies under s 503A of the Act, there was no failure of such requirements of procedural fairness as were not excluded by those provisions.

Whether there was an error of fact amounting to jurisdictional error

44 The final issue raised on behalf of Mr Hicks relates to whether there was a jurisdictional error because of the delegate’s erroneous reference to an admission, which he had never made, that he was currently involved with the Rebel Motor Cycle Gang. There is no doubt that in the decision record the delegate said:

‘By his own admission Mr Hicks is a member of the Rebels OMCG.’

There is no doubt either that that assertion was repeated in notice of visa refusal given to Mr Hicks on 6 August. It is apparent, however from the report written up on the following day that the delegate was well aware that Mr Hicks had claimed that he no longer had any association to the group. This also appeared from the questions and answers which the delegate recorded immediately prior to making his decision to refuse the grant of the visa. In the circumstances the reference to an admission of current membership of the club was a slip. In so concluding Mr Nixon also took into account the intelligence from Law Enforcement Agencies which was evidently supportive of a current association and the evidence of an admitted prior association described in earlier court proceedings.

45 In the circumstances, although the reasons are indicative of factual error in that respect it is not an error which in our opinion goes to jurisdiction. It is certainly not a matter on which there was no evidence to support the conclusion at which the delegate arrived.

Conclusion

46 The appeal will be dismissed. The appellant is to pay the respondent’s costs of the appeal.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 11 May 2005

Counsel for the Appellant:	Mr TV Hurley
Solicitor for the Appellant:	Mark Andrews & Associates
Counsel for the Respondent:	Mr J Allanson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 May 2005
Date of Judgment:	11 May 2005