Christie v Minister for Immigration & Multicultural Affairs [2001] FCA 442

FEDERAL COURT OF AUSTRALIA

Christie v Minister for Immigration & Multicultural Affairs [2001] FCA 442 MIGRATION – Minister's decision to deport applicant because of failure to satisfy character test – whether Minister treated charges against applicant as convictions ADMINISTRATIVE LAW – failure to consider arelevant consideration – consideration of an irrelevant consideration – whether there was an error of law- whether Minister entitled to consider charges for any purpose Migration Act 1958 (Cth), ss 476, 501

Minister for Aboriginal Affairs v Peko Wallsend Ltd (1985-86) 162 CLR 24, cited Baulch v Minister for Immigration and Multicultural Affairs [2001] FCA 139, cited PETER ROBERTSON CHRISTIE v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Q 142 of 2000 SPENDER J BRISBANE 20 APRIL 2001

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 142 OF 2000

BETWEEN: PETER ROBERTSON CHRISTIE

APPLICANT

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: SPENDER J

DATE OF ORDER: 20 APRIL 2001

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: The application be dismissed with costs. 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 Q 142 OF 2000

BETWEEN: PETER ROBERTSON CHRISTIE

APPLICANT

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: SPENDER J

DATE: 20 APRIL 2001

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 This is an application pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) to review the judicially reviewable decision made by the Minister for Immigration and Multicultural Affairs on 26 September 2000 to cancel the visa of the applicant. 2 On 20 September 1957, Peter Robertson Christie arrived in Australia. He was then nine years old and had, of course, no criminal convictions. He was born on 26 April 1948 in the United Kingdom. Since his arrival in Australia, he has resided permanently here. He is a citizen of the United Kingdom, his parents not having become Australian citizens prior to his reaching 18 years of age. 3 Mr Christie is now aged 52. He has resided in Australia for more than forty years. All his ties are in Australia. He has a very extensive criminal history. He was first convicted as a juvenile in 1961. He was sentenced eight times as a juvenile for offences including stealing, unlawful assault, indecent assault, and break enter and steal. He was first convicted as an adult in 1967. From that time until a conviction in 1998, he had been sentenced by courts in New South Wales, Queensland, Victoria and the ACT on more than 45 occasions, the offences ranging from minor traffic offences to serious offences involving theft, fraud and offences involving violence, drug production and home invasion. 4 On 26 September 2000, the Minister for Immigration and Multicultural Affairs the Honourable Philip Ruddock decided, pursuant to s 501(2) of the Act to cancel the visa of Mr Christie. It is that decision which is the subject of this present application. 5 In reaching his decision, the Minister had the benefit of a memorandum from officers of his department. That submission detailed the substantial criminal record of Mr Christie which included a conviction for producing a dangerous drug, in respect of which he was sentenced to imprisonment for three years, as well as convictions for a number of charges for breaking and entering a dwelling house with intent, in respect of which he was sentenced to three years imprisonment on each charge, a charge of malicious wounding for which he was sentenced to imprisonment for three years, a charge of indecent assault on a female under the age of 16 years for which he was sentenced to imprisonment for three years on each of two charges, as well as many other offences. There can be no doubt that the sorry criminal history of Mr Christie provides the basis for a reasonable suspicion that he failed the character test referred to in s 501 of the Migration Act. 6 Section 501 of the Act relevantly provides: "… (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: … (c) the person has been sentenced to a term of imprisonment of 12 months or more; or … 7 On 26 September 2000, the Minister decided, in a document headed "Ministers Decision on Cancellation under S.501(2)": "[57] I have considered all relevant matters including (1) an assessment of the Character Test within the meaning of s.501 Migration Act 1958, (2) the Ministers Direction No.17 under s.499 of the Act and the non-citizen's comments (if any), and have decided that: (Please delete whichever is not applicable) (a) Peter Robertson Christie does not pass the character test, has been unable to satisfy me that he does pass the character test and the visa is cancelled; (b) Peter Robertson Christie does not pass the character test, has been unable to satisfy me that he does pass the character but in the exercise of my discretion the visa is not cancelled; (c) Peter Robertson Christie passes the character test and the visa is not cancelled. (signed) PHILIP RUDDOCK Minister for Immigration & Multicultural Affairs Date: 26.9.00" 8 The memorandum leading to that decision indicated the factors against and in favour of cancellation as follows: "Factors against Cancellation [58] It is open for you to find that the cancellation of Mr CHRISTIE's visa and his removal from Australia may have a minimal detrimental effect on his children. (Primary Consideration) [59] Mr CHRISTIE has lived in Australia since he was 9 years old and has spent half of his formative years in Australia. (Other Consideration) [60] Mr CHRISTIE's immediate family reside in Australia. He has no family ties in the United Kingdom. (Other Consideration) [61] Mr CHRISTIE has an unresolved interest in a property in Queensland. (Other Consideration) [62] It is open for you to find that cancellation of his visa and removal from Australia would cause Mr CHRISTIE extreme hardship. (Other Consideration) [63] Mr CHRISTIE has not previously been considered for cancellation under s.501 or deportation under s.200/201 of the Migration Act. Factors in Favour of Cancellation [64] It is open for you to find that Mr CHRISTIE's conduct against the community is serious. (Primary Consideration) [65] It is open for you to find that Mr CHRISTIE is at a high risk of recidivism. (Primary Consideration) [66] It is open for you to find that cancellation of Mr CHRISTIE's visa would serve as a deterrence factor against others committing similar offences. (Primary Consideration)" 9 The memorandum to the Minister referred to a number of annexures, Annexure A to Annexure G. None of those annexures in fact was a copy of Direction Number 17, which was referred to in paragraph [8] of that memorandum which stated: "If you are satisfied that Mr CHRISTIE does not pass the character test, you must still consider the exercise of your discretion not to cancel his visa. In exercising your discretion you must consider the Minister's Direction No.17 made under s.499 ("the Direction") of the Migration Act 1958. The Direction is binding as to the weight to be accorded to certain matters and the considerations which should be included in your deliberations." 10 In respect of this Direction and its absence from the enumerated list of material in the annexures to the memorandum to the Minister, an officer of the department deposed: "2. In September 2000 I prepared a memorandum to the Respondent regarding the liability of the Applicant for cancellation of his visa under s.501(2) of the Migration Act 1958 (the Memorandum). The Memorandum is now produced and shown to me and marked"BAR1". It is the Department's standard practice to include all annexures referred to in the Memorandum when it is provided to the Minister or other decision-makers. 3. The Memorandum refers to the Respondent's Direction – No. 17 made pursuant to s.499 of the Migration Act. Now produced and shown to me, annexed hereto and marked "BAR2"is a copy of Direction No17." 11 This statement does not attest to the provision of the Direction No. 17 to the Minister in relation to this present matter as an annexure to the memorandum. I do not think that a copy of the direction accompanied the memorandum to the Minister. The Minister nonetheless indicated that he considered that Direction in making his decision. 12 The memorandum to the Minister under the heading "likelihood that the conduct may be repeated (including any risk of recidivism)" said: "[21] In assessing Mr CHRISTIE's risk of recidivism it is open for you to take the following issues into account: … (3)Mr CHRISTIE is currently in custody on remand. He was charged on 11 January 2000 with Obstruct Police and Attempted Rape. These offences were allegedly committed while Mr CHRISTIE was on parole." … And later: "[22] In consideration of the above factors, it is open for you to find that Mr CHRISTIE is at a high risk of recidivism." 13 The submission on Mr Christie's behalf is that the factor (3) referred to above was an improper and irrelevant consideration, because the charges alleged had not been proved in a criminal court, and the likely outcome of those charges was not known to any party at the time when the assessment of Mr Christie's character was made. 14 In fact, what later occurred was that on 21 February 2001, Mr Christie pleaded guilty to one charge of assault occasioning bodily harm, the Crown accepted that plea of guilty in full discharge of the indictment, a conviction was recorded, and Mr Christie was ordered to perform 200 hours of community service. The prosecution elected not to proceed with the charge of attempted rape. 15 It is to be noted that paragraph 1.10 of Direction No. 17 provides: "In addition to the above matters, a non-citizen is, in the absence of any countervailing factors, not of good character under the general conduct provisions if the conduct of the non-citizen has: (a) resulted in offences that are the subject of charges but are not resolved pending a hearing or trial. Matters to be considered when deciding the weight to be given to unresolved charges could include, (but are not limited to): § whether there is a pattern of conduct relating to the applicant (eg similar charges in the past, other criminal behaviour); and/or § the seriousness of the offence with which the applicant has been charged; or (b) resulted in the non-citizen being acquitted of a criminal offence or where there has been no conviction recorded." And paragraph 2.10 provides: "It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism …" 16 The Minister's decision is a judicially reviewable decision pursuant to s 475(1)(c) of the Act, being a decision made under the Act relating to a visa. The grounds upon which the Court may set aside a judicially reviewable decision are specified in s 476(1) of the Act. Section 476(1)(e) is the ground: "that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision." 17 The only ground advanced by the applicant is: "the decision under review involved an error of law: the decision under review involved the Minister having regard to and treating as if they were convictions, matters which have not been proved in a criminal court, and that it was wrong in law for the Minister to so treat those charges …" 18 In my opinion this ground does not assert an error of law of the kind referred to in s 476(1)(e). What it asserts, really, is that the Minister took into account a consideration which it is submitted is irrelevant. Under s 476(1)(e) of the Act, the taking into account of an irrelevant consideration will only amount to an error of law as defined in that paragraph if the decision maker was bound not to take that consideration into account. 19 Mason J in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1985-86) 162 CLR 24 said at 39: "The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375; CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 at 183, 196-197; Ashby v Minister of Immigration [1981]1 NZLR 222 at 225, 230, 232-233." 20 In the present case, the Minister was not bound by any law not to have regard to the criminal charges, and no error of law can be constituted by his taking that consideration into account. 21 Section 476(1)(d) provides that an available ground is: "that the decision was an improper exercise of the power conferred by this Act or the regulations." 22 Section 476(3) of the Act provides: "The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to: (a) an exercise of a power for a purpose other than a purpose for which the power is conferred; and (b) an exercise of a personal discretionary power at the direction or behest of another person; and (c) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case; but not as including a reference to: (d) taking an irrelevant consideration into account in the exercise of a power; or (e) failing to take a relevant consideration into account in the exercise of a power; or (f) an exercise of a discretionary power in bad faith; or (g) any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c)." 23 By virtue of ss 476(1)(d) and 476(3) of the Act, taking into account an irrelevant consideration does not establish that a decision was an improper exercise of a power conferred by the Act. 24 In any event, given the extensive criminal history of Mr Christie, it must seriously be doubted that the circumstance that Mr Christie was facing charges at the time the decision of the Minister was made, played any significant part in the conclusion that he did not pass the character test. 25 In Sykes et al, "General Principles of Administrative Law", 4th Edition, Butterworths 1997, the learned authors said at par 1022: "In R v Bishop of London (1890) 24 QBD 226 at 227 Lord Esher MR held that a decision was not bad merely because an authority refused to consider each and every circumstance of a case or that he or she considered something which was not a relevant circumstance. In the latter case it would have to be shown that the authority acted on the irrelevant consideration. Similarly, in Hanks v Minister of Housing and Local Government [1963] 1 QAB 1020 Megaw J said that irrelevant considerations would not render a decision invalid unless they were significant. 26 It is simply not correct to contend that the Minister treated the 11 January 2000 as being convictions. Further, while I acknowledge that minds might differ on this aspect of the matter, the fact that a person with a lengthy criminal history has been recently charged with further criminal offences might be regarded as being logically relevant to the assessment of the risk of recidivism. In Baulch v Minister for Immigration and Multicultural Affairs [2001] FCA 139 at [22], Drummond J said of Direction 17: "The Direction identifies relevant considerations and how they are to be weighed in exercising this discretionary power. It is not a Policy purporting to dictate a particular outcome in any particular case or class of case. It was not suggested (and does not appear) that any of the considerations set out in the Direction are foreign or irrelevant to a proper exercise of the power conferred by s 501(2)." 27 For the above reasons, no ground of review has been made out, and the application must be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.