Lu v Minister for Immigration & Multicultural Affairs [2000] FCA 178 (25 February 2000)

Last Updated: 2 August 2000

FEDERAL COURT OF AUSTRALIA

Lu v Minister for Immigration & Multicultural Affairs [2000] FCA 178

IMMIGRATION -- Competency of Minister's cancellation of permanent visa where earlier order for deportation set aside by Administrative Appeals Tribunal -- where decision involved duplication of similar considerations -- analysis of disparities between powers relevant to deportation and visa cancellation -- whether setting aside of deportation order manifests an estoppel, preventing Minister from taking further action against appellant.

Minister for Immigration and Multicultural Affairs v Gunner (1998) 85 FCA 400 approved, followed

Jia Le Geng v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 discussed

Geng v Minister for Immigration and Multicultural Affairs [1999] FCA 951 referred to

Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93 cited

Migration Act 1958 (Cth) ss 29, 30, 116, 118, 200, 201, 501, 502

Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth) s 43(6)

HO SONG LU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 334 OF 1999

SPENDER, O'CONNOR and KIEFEL JJ

BRISBANE

25 FEBRUARY 2000

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	V 334 OF 1999

BETWEEN:	HO SONG LU Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGES:	SPENDER, O'CONNOR and KIEFEL JJ
DATE OF ORDER:	25 FEBRUARY 2000
WHERE MADE:	BRISBANE

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
QUEENSLAND DISTRICT REGISTRY	V 334 OF 1999

BETWEEN:	HO SONG LU Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGES:	SPENDER, O'CONNOR and KIEFEL JJ
DATE:	25 FEBRUARY 2000
PLACE:	BRISBANE

REASONS FOR JUDGMENT

SPENDER AND O'CONNOR JJ:

1 We have had the benefit of reading in draft form the Reasons for Judgment of Kiefel J. We agree that the appeal should be dismissed with costs, for the reasons which her Honour gives.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justices Spender and O'Connor .

Associate:

Dated: 25 February 2000

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	V 334 OF 1999

BETWEEN:	HO SONG LU Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGES:	SPENDER, O'CONNOR and KIEFEL JJ
DATE:	25 FEBRUARY 2000
PLACE:	BRISBANE

REASONS FOR JUDGMENT

KIEFEL J:

2 On 19 October 1998, the Minister for Immigration and Multicultural Affairs cancelled the appellant's visa and declared him to be an excluded person. The sources of power relied upon by the Minister were, respectively, ss 501 and 502 Migration Act 1958. The effect of the declaration was that the appellant could not obtain merits review by the Administrative Appeals Tribunal of the decision to cancel his visa. The Minister had earlier ordered the appellant's deportation under s 200 of the Act, but on 12 June 1998 the Tribunal set that decision aside and substituted for it a decision that the appellant not be deported from the country.

3 The appellant came to Australia from Vietnam in September 1982 and became a permanent resident. The recommendation for deportation, which was accepted by the Minister's delegate, had regard to the commission by the appellant of offences of armed robbery; break and entry and stealing; threatening to use an offensive weapon to prevent lawful apprehension and being in possession of housebreaking implements. The first of the offences was committed in February 1990 and the following offences some months later, and whilst he was on bail. The recommendation contained references to the sentences, which rendered the appellant liable for deportation, and the judge's comments on sentencing, which included a recommendation for deportation. It also referred to other factors including the risk of recidivism and the prospects of rehabilitation; other persons who would be affected by the deportation; reports from the Correctional Centre; the practicality of deportation; the appellant's contribution to the Australian community; the strength of his family and social ties in Australia; and the hardship he would suffer if he were returned to Vietnam. The Tribunal however concluded that deportation was not warranted, having regard to its view that there was a low risk of reoffending and the hardship which would be caused to the appellant's family. The Minister appealed to this Court from the decision on 10 July 1998. That appeal has not been prosecuted.

4 On 16 October 1998, the Minister's view was sought by his Department on the approach to be taken with respect to the appellant's case: as to whether to pursue the appeal or whether the Minister wished personally to consider cancelling the appellant's visa and declaring him to be an excluded person. On 19 October 1998, the Minister indicated his preference for the latter course. The Minister was then provided with a document which set out issues for his consideration. As to the finding, as to whether the appellant was not of good character, which s 501 requires before a visa can be cancelled, reference was made to his past criminal conduct and also to the need to balance any other matters including any recent good conduct. This information was not, however, available as the appellant had not responded to an invitation to provide it. The Minister was also advised of matters which might be relevant to the exercise of his discretion. They concerned the appellant's family and hardship to them and the issue of the safety of the Australian community.

5 It may be observed that the matters put forward for the Minister's consideration respecting ss 501 and 502 were the same as some of those taken into account for the purposes of s 200. Those matters which were relevant to the exercise of the Minister's discretion under s 501(1) - the risk to the community and effect upon the appellant's family - also fall for consideration under the Guidelines with respect to deportation. The essential determination under s 501(2) is however different from the deportation process, because the former focuses upon the person's character by reference to, amongst other matters, his or her past criminal conduct. Another difference between the two sets of provisions is that they give rise to different legal consequences: deportation with attendant rights to merits review; cancellation of visa with rights to merits review if not excluded by the Minister. The sections are set out below.

The Decision Appealed From

6 The appellant's core argument, identified by his Honour the primary Judge (Drummond J), rested upon the Minister's inability to make orders under ss 501 and 502 when an order for deportation had already been made and set aside by the Tribunal. A Full Court of this Court (Heerey, Lindgren and Emmett JJ) had already dealt with arguments relating to the Minister's right to invoke sections 501 and 502 in such circumstances and held that the Minister might do so notwithstanding that the process relating to deportation had been undertaken (Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400, 407-8). His Honour considered that he was bound by that decision. The appellant then sought, unsuccessfully, to distinguish Gunner's case from the present.

The Statutory Provisions

7 Section 501 was substituted and section 502(1)(a)(ii) of the Act repealed from 1 June 1999 (see the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth) (Number 114, 1998)), but decisions made under the former provision are not affected by the repeal. The provisions which are of present concern to this Court are those considered in Gunner's case. Sections 200 and 201 provided:

"Deportation of certain non-citizens

200. The Minister may order the deportation of a non-citizen to whom this Division applies.

Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes

201. Where:

(a) a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;

(b) when the offence was committed the person was a non-citizen who:

(i) had been in Australia as a permanent resident:

(A) for a period of less than 10 years; or

(B) for periods that, when added together, total less than 10 years; or

(ii) was a citizen of New Zealand who had been in Australia as an exempt non-citizen or a special category visa holder:

(A) for a period of less than 10 years as an exempt non-citizen or a special category visa holder; or

(B) for periods that, when added together, total less than 10 years, as an exempt non-citizen or a special category visa holder or in any combination of those capacities; and

(c) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;

section 200 applies to the person."

And ss 501 and 502 provided:

"Special power to refuse or to cancel visa or entry permit

501. (1) The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if:

(a) subsection (2) applies to the person; or

(b) the Minister is satisfied that, if the person were allowed to enter or to remain in Australia, the person would:

(i) be likely to engage in criminal conduct in Australia; or

(ii) vilify a segment of the Australian community; or

(iii) incite discord in the Australian community or in a segment of that community; or

(iv) 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 violence threatening harm to, that community or segment, or in any other way.

(2) This subsection applies to a person if the Minister:

(a) having regard to:

(i) the person's past criminal conduct; or

(ii) the person's general conduct ;

is satisfied that the person is not of good character; or

(b) is satisfied that the person is not of good character because of the person's association with another person, or with a group or organisation, who or that the Minister has reasonable grounds to believe has been or is involved in criminal conduct.

(3) The power under this section 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.

Minister may decide in the national interest that certain persons are to be excluded persons

502. (1) If:

(a) the Minister, acting personally, intends to make a decision:

(i) under section 200 because of circumstances specified in section 201; or

(ii) under section 501; or

(iii) to refuse to grant a protection visa, or to cancel a protection visa, relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33 (2);

in relation to a person; and

(b) the Minister decides that, because of the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person;

the Minister may, as part of the decision, include a certificate declaring the person to be an excluded person.

(2) A decision under subsection (1) must be taken by the Minister personally.

(3) If the Minister makes a decision under subsection (1), the Minister must cause notice of the making of the decision to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the decision was made."

8 The arguments advanced on appeal were directed to s 501. Section 500(1) provides that review by the Administrative Appeals Tribunal may be sought of decisions including those made under s 501, but not where a s 502 certificate applies to that decision.

9 It is also necessary to refer to certain provisions relating to visas, having regard to the arguments advanced on behalf of the appellant. Section 29 provides for the granting to a non-citizen of a permission, to be known as a visa, to remain in Australia. Section 30 provides:

"(1) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely.

(2) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a temporary visa, to remain:

(a) during a specified period; or

(b) until a specified event happens; or

(c) while the holder has a specified status."

10 The general power of cancellation is contained in s 116 which refers to the circumstances supporting the original grant of visa no longer existing; non-compliance with conditions of a visa and other grounds including one that the presence of the holder of the visa in Australia would be a risk to the health, safety or good order of the Australian community. Section 118 provides:

"Cancellation powers do not limit or affect each other

118. The powers to cancel a visa under:

(a) section 109 (incorrect information); or

(b) section 116 (general power to cancel); or

(c) section 128 (when holder outside Australia); or

(d) section 134 (cancellation of business visas); or

(e) section 140 (consequential cancellation of other visas); or

(f) section 501 (special power to refuse or cancel);

are not limited, or otherwise affected, by each other."

Gunner's case

11 In Gunner's case, the primary judge (Sackville J) had identified a number of considerations which suggested that the Minister might exercise the powers given by ss 501 and 502 notwithstanding a Tribunal decision adverse to deportation. His Honour was, however, persuaded to a contrary conclusion because, in his Honour's view, ss 501 and 502 should not be construed as authorising the Minister to take the same action on the basis of the same facts and circumstances that caused the Tribunal to set aside a deportation order and, in effect, overturn that decision.

12 That decision was not followed by French J in Jia Le Geng v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 (which was reversed on other grounds: Geng v Minister for Immigration and Multicultural Affairs [1999] FCA 951). His Honour considered that there was no express limitation upon the exercise of the Minister's powers under ss 501 and 502 where the Administrative Appeals Tribunal had made a decision to the contrary (there a decision favourable to the grant of a visa) and that there was nothing to warrant such an implication. The Full Court in Gunner's case was of a similar view (407). It went on (at 408):

"..... it is not accurate in our respectful submission to speak of setting at nought the AAT's determination. This is not a case where a Minister attempted to act in defiance of a binding ruling by the AAT. Sections 501 and 502 are quite separate sources of power.* 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.

In any event, it is not entirely correct to say that the Minister's decision was `based on' the same facts and circumstances as had been considered by the AAT. The Minister did not have before him any material which was not before the AAT. But because of the different provisions of ss 201 and 501 the test is not the same and the criteria are different. The Minister, in exercising the discretion conferred by s 501, was entitled to take into account matters which were not relevant to a decision under s 200 based on the criteria specified in s 201."

* (I take their Honours to say that ss 501 and 502 are separate sources of power from s 200).

Contentions on the appeal

13 The appellant sought to argue that Gunner's case was wrongly decided. No issue was taken with the departure from the argument in the proceedings below. The appellant submitted that either the Minister lacked power under s 501 to cancel the visa; some constraint was to be seen as intended with respect to its exercise, in circumstances where there had been a decision by the Tribunal that there be no deportation; or the Minister was prevented or unable to exercise the power. In my view, once regard is had to the separate nature of the powers and the different criteria to which the exercise of them is referrable, as Gunner's case explains, and to the discretion contained in s 501, the contentions of the appellant are largely answered.

14 There were a number of approaches to the first general contention, that relating to the Minister's supposed lack of power. The first had regard to the nature of the visa held by the appellant, which was a permanent and not a temporary one. Such a visa is, by s 30(1), one which permits him to stay in Australia "indefinitely". It was submitted that it could not have been intended to confer such a right to many people but nevertheless subject it to the Minister's personal consideration under s 501. The argument at one point appeared to equate that permission with an unimpeachable right, but it is clear that permanent visas remain liable to cancellation on a number of grounds and that s 501 is not limited in its terms to temporary visas. The appellant also sought to read down the power of cancellation given by s 501 as subject to the other powers of cancellation earlier specified in the Act, but there is no basis for this contention. Not only is s 116 described as the general power and s 501 the special, s 118 provides that the different powers of cancellation do not limit or affect one another and s 501(3) states that the power under that section is in addition to any other power to cancel a visa.

15 It was then submitted that the power of deportation given by s 200 should be viewed as a specific power that prevails over the general power given by s 501, though it was not made clear why those powers should be so described. The two provisions are in any event different in the respects referred to above and as was pointed out in Gunner's case. The appellant's own argument recognised that there were different legal consequences following the exercise of the two powers even if, as Sackville J observed, the practical effect for a visa holder may be substantially the same.

16 In my view, no basis has been shown for doubting the correctness of the Full Court's reasoning in Gunner's case.

17 Arguments based upon estoppels of different kinds, as the appellant now contends for, were not raised in Gunner's case. It was first submitted, in this connexion, that there was an implicit representation, on the part of the Minister, that he would accept merits review and accept himself bound by it, regardless of whether there were other courses open to him. As a question of fact, no such representation can be gleaned from the Minister's decision to deport the appellant, even if the Tribunal later substituted a different decision for it. That the decision is thereby deemed to be the Minister's (see s 43(6) Administrative Appeals Tribunal Act 1975 (Cth)) for some purposes does not render it a statement in fact made by the Minister with respect to his future conduct. In any event, even if some otherwise actionable representation could be attributed to the Minister, considerations of public policy would prevent any estoppel from arising, since the legislation is to be taken as intending a free and unhindered exercise of discretion: Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93, 111.

18 The balance of the appellant's submissions raised questions relevant to issue estoppel, although it was not explained how these principles were to apply in the context of administrative decision-making. This is not a case where a second application has been made to the Tribunal. In such cases, there is at least some question whether these principles might apply (see Res Judicata, Issue Estoppel and the Commonwealth Administrative Appeals Tribunal: A Square Peg into a Round Hole? T. McEvoy, (1996) 4(1) AJAL 37-55). In these proceedings no facts, upon which the Minister's decision depends, are, or could be, in issue. In truth, the appellant's arguments concern the conclusion reached by the Tribunal against deportation, and seek to use it to foreclose another decision under a different head of power by the Minister under s 501. There is, as earlier mentioned, no basis for reading one source of power as limiting the other, and the same applies with respect to decisions made in the exercise of the power.

19 In my view, the appeal should be dismissed with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated: 25 February 2000

Counsel for the Appellant:	Mr T Hurley
Solicitor for the Appellant:	Haines & Polites
Counsel for the Respondent:	Mr J Basten QC with Mr J Logan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 November 1999
Date of Judgment:	25 February 2000