M238 of 2002 v The Honourable Phillip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 260

FEDERAL COURT OF AUSTRALIA

M238 of 2002 v The Honourable Phillip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 260 M238 of 2002 v The Honourable Phillip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs V 913 of 2003 GYLES, CONTI & ALLSOP JJ 21 NOVEMBER 2003 SYDNEY (HEARD IN MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY V 913 of 2003

ONAPPEALFROMASINGLEJUDGEOFTHEFEDERALCOURTOF AUSTRALIA

BETWEEN: M 238 of 2002

APPELLANT

AND: THE HONOURABLE PHILLIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: GYLES, CONTI & ALLSOP JJ

DATE OF ORDER: 21 NOVEMBER 2003

WHERE MADE: SYDNEY (HEARD IN MELBOURNE)

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs up to and including 10 November 2003. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY V 913 of 2003

ONAPPEALFROMASINGLEJUDGEOFTHEFEDERALCOURTOF AUSTRALIA

BETWEEN: M 238 of 2002

APPELLANT

AND: THE HONOURABLE PHILLIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: GYLES, CONTI & ALLSOP JJ

DATE: 21 NOVEMBER 2003

PLACE: SYDNEY (HEARD IN MELBOURNE)

REASONS FOR JUDGMENT

THE COURT:

Background 1 The appellant was born in Vietnam on 7 July 1966. He came to Australia as a refugee in 1980 together with his elder brother. He has not become a citizen. Notwithstanding his presence in the country since 1980, he is an alien for the purposes of the Migration Act 1958 (Cth) (the Act): Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 193 ALR 37. 2 In 1989, the appellant was convicted of murder and intentionally causing serious injury. The murder involved the appellant chasing his victim down a public road, cornering him, and shooting him in the head with a semi-automatic weapon. The events were part of an affray between rival gangs. Prior to this event in 1988, the appellant had other convictions for crimes of both dishonesty and violence. For these crimes in 1988, the appellant was sentenced to sixteen years imprisonment, with a non-parole period of twelve years. 3 On 24 October 2002, the Minister cancelled the appellant's visa pursuant to s 501(2) of the Act. Section 501 was, relevantly, in the following terms: … (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. … (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 the punishment for an offence.