Ho Song Lu v Minister for Immigration & Multicultural Affairs [1999] FCA 749 (2 June 1999)

Last Updated: 22 June 1999

FEDERAL COURT OF AUSTRALIA

Ho Song Lu v Minister for Immigration & Multicultural Affairs [1999] FCA 749

MIGRATION - Whether Minister can invoke discretion under ss 500 and 501 of the Migration Act 1958 (Cth) when based on exactly the same facts as a decision in favour of the applicant under s 200 - applicability of ss 500 and 501 when visa current before invocation of those provisions.

Migration Act 1958 (Cth) ss 200, 501, 502

Acts Interpretation Act 1901 (Cth) s 8

Minister for Immigration and Multicultural Affairs v Gunner (1998) 156 ALR 306, followed

HO SONG LU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

QG 152 OF 1998

DRUMMOND J

2 JUNE 1999

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 152 OF 1998

BETWEEN:	HO SUNG LU Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	DRUMMOND J
DATE OF ORDER:	2 JUNE 1999
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant to pay the respondent's costs of and incidental to the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 152 OF 1998

BETWEEN:	HO SUNG LU Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	DRUMMOND J
DATE:	2 JUNE 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 This is an application to review decisions of the Minister made on or about 19 October 1998 that the applicant is not of good character within s 501(2)(a) the Migration Act 1958 (Cth) and cancelling the applicant's permanent residency visa under s 501(1)(a). The applicant also seeks a review of the Minister's decisions made on the same day that it is in the national interest that he be declared an excluded person and to issue a certificate pursuant to s 502 of the Act.

2 Counsel confirmed that his core argument for challenging all these decisions turns on the fact that prior to the decisions of the Minister of October last, the Minister had made a deportation order against the applicant under s 200 of the Act, which was set aside by the Administrative Appeals Tribunal on 12 June 1998. The Minister instituted an appeal to this Court against the AAT's decision, which he later abandoned once he determined to achieve his object of excluding the applicant from Australia by his own decisions of October 1998 now under attack.

3 The applicant's attacks on the decisions, however, run headlong into the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Gunner (1998) 156 ALR 306. In that case, in circumstances similar to the present, the Full Court held that it was open to the Minister to invoke ss 501 and 502 to exclude a permanent resident and deny him the right of merit review notwithstanding the fact that the AAT had set aside the Minister's deportation decision made under s 200.

4 The applicant submits that Gunner was wrongly decided but it, of course, binds me. The applicant went on to seek to distinguish Gunner on a number of bases.

5 The first ground upon which the applicant seeks to distinguish Gunner is on the basis that the factual circumstances of the two cases are different, in that the Minister in Gunner applied s 501 to a set of facts not identical to the facts to which he had unsuccessfully earlier sought to apply s 200. Reference was made to what appears in particular at p 313 of the report in Gunner indicating that the s 200 decision could not have been based upon the very serious banking conspiracy offence for the reasons there given, although it was properly taken into account in the s 501 decision. It is said, by way of contrast, that here the Minister's s 200 decision, now constituted in effect by the AAT's determination of 12 June 1998, operates by reference to exactly the same set of facts as the Minister's later s 501 and 502 decisions. However, it was said in Gunner at 313:

"Sections 501 and 502 are quite separate sources of power [ie, separate from that conferred by s 200]. The criteria for the exercise of those respective powers are by no means co-extensive, although there is an overlap. The fortuitous circumstance that two separately sourced powers might be exercised in respect of the same collocation of facts cannot affect the construction of the relevant statutory provisions, which must be given a meaning as at the time of their enactment."

6 I read this passage as indicating that even though both powers are sought to be invoked in respect of exactly the same set of facts, it is open to the Minister to rely upon s 200 and, in circumstances like the present, when denied the right to do that, to then invoke s 501.

7 Secondly, reference was made to what was said by the Court in Gunner at 314 to the effect that there was no suggestion there that the Minister, in invoking s 501 after unsuccessfully attempting to invoke s 200, had acted out of a fit of pique or was motivated by a desire to overturn the AAT's decision just for the sake of doing so. The submission was made that that is indeed the circumstances of this case. However, the submission is wholly unsupported by the evidence before me. The only material referred to by counsel for the applicant to make good this submission, that the Minister in effect acted in abuse of the powers conferred by ss 501 and 502, is contained in the minute of advice, drawing to the Minister's attention the availability of s 501 to achieve his objective, notwithstanding the pendency of his appeal to the Federal Court in respect of the AAT's decision in relation to his s 200 decision.

8 It can be accepted that the Minister's motive in abandoning the appeal against the s 200 determination by the AAT was to achieve the same object he had sought to achieve by making that decision initially, viz, exclusion of the applicant from Australia; but Gunner shows that it is open to the Minister, unable to rely on s 200 to exclude a permanent visa holder from Australia, to use the separate power in s 501 to achieve that same objective. That is as far as the evidence to which I was referred goes. In my opinion, no abuse of the power conferred by s 501 is involved where the Minister acts in that way.

9 Finally it was said that the Minister, in making the s 501 and 502 decisions, contravened s 476(1)(a) and (c). But both arguments were revealed as seeking to contradict that which Gunner, in my opinion, establishes, viz, that a deemed decision by the Minister against deportation under s 200 is no bar to the Minister making a determination under s 501 and then under s 502, to achieve exclusion of a person from this country and denial of merit review of that exclusion.

10 It was further said that because the applicant obtained his permanent visa before s 501 and s 502 came into force, and indeed before the relevant Bill was presented to the Parliament, and because the applicant's criminal conduct by reference to which the Minister made his determination under s 501(2)(a)(1) had all occurred and had become the subject of final adjudication before that date, the applicant had an accrued right under s 8 of the Acts Interpretation Act 1901 (Cth) to the permanent residency status conferred on him by the grant by operation of law of his transitional (permanent) visa on 1 September 1994.

11 There are two answers to this submission. The first is that the applicant never had any accrued right to that status. It was a status conferred only by visa and visas have at all material times been subject to cancellation by the Minister. Reference was made by the respondent Minister to s 11B the Migration Act 1958 (Cth) introduced in 1979 and to s 26 the Migration Act introduced in 1989, which both made visas cancellable by the Minister in his or her absolute discretion.

12 The second answer is that ss 501(1)(a) and 501(2)(a)(i) expressly empower the Minister to base a decision to cancel any visa on a person's past criminal conduct. Even if, contrary to my view, the applicant had an accrued right to permanent residency status as at the date of commencement of ss 501 and 502, that could only arise from the visa he was deemed to have been granted on 1 September 1994. There is a clear intention revealed in s 501 to make such status defeasible because of criminal conduct occurring at any time prior to the commencement of that section. Section 8 of the Acts Interpretation Act 1901 (Cth) is therefore not available to the applicant.

13 The s 502 decisions were based on what appears, on the material before me, to be fairly pedestrian criminal conduct. But those particular decisions were only challenged because of what was said to flow from the existence of the AAT decision, deemed to be that of the Minister, not to order deportation. It was said that because the Minister must in view of the AAT decision be deemed to have decided against deportation, it would be inconsistent for the Minister to determine under s 502 that the seriousness of the circumstances giving rise to the making of his decision under s 501 were such as to justify declaring the applicant to be an excluded person. But once it is seen that the decision under s 200 against deportation does not prevent the Minister making a decision under s 501 to cancel a visa and so require the applicant's removal from Australia because each section has an operation independent of the other, it is not necessarily apparent that the Minister cannot, as a matter of construction of the relevant provisions, invoke s 502 when he had acted under s 501.

14 The application is therefore dismissed.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:

Dated: 2 June 1999

Counsel for the Applicant:	Mr J Hurley
Solicitor for the Applicant:	Hawes & Polites
Counsel for the Respondent:	Mrs E Ford
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 June 1999
Date of Judgment:	2 June 1999