Schwart v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 169

FEDERAL COURT OF AUSTRALIA

Schwart v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 169 MIGRATION ACT – Cancellation of visa – s 501(2) – error in description of visa in material submitted to Minister for decision – whether jurisdictional error

Migration Act 1958 (Cth) Judiciary Act 1903 (Cth) Re Minister for Immigration and Multicultural Affairs; ex parte Te (2002) 193 ALR 37 S134/2002 v Commonwealth of Australia[2003] HCA 2 S157/2002 v Commonwealth of Australia[2003] HCA 2 Craig v South Australia (1995) 184 CLR 163 Re Refugee Review Tribunal, ex parte AALA (2000) 204 CLR 82 Buck v Bavone (1976) 135 CLR 110 DCT v Woodhams (2000) 169 ALR 503 Adelaide Enfield v Minister for Transport & Urban Planning (1999) 73 SASR 22 SVEN SCHWART v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS No S 29 OF 2003 SELWAY J ADELAIDE 7 MARCH 2003

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S29 OF 2003

BETWEEN: SVEN SCHWART

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: SELWAY J

DATE OF ORDER: 7 MARCH 2003

WHERE MADE: ADELAIDE

THE COURT DECLARES THAT:

1. The decision of the respondent dated 5 February 2003 which purports to cancel the visa held by the applicant is invalid.

AND ORDERS:

2. That the applicant have his costs of and incidental to this application.

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

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S29 OF 2003

BETWEEN: SVEN SCHWART

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SELWAY J

DATE: 7 MARCH 2003

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The applicant is a German citizen. He arrived in this country with his parents in December 1984. He entered this country and, at least until the events that lead to these proceedings, continued to reside here under a Residence Visa Category K1412. For constitutional purposes the applicant is an "alien" (see Re Minister for Immigration and Multicultural Affairs; ex parte Te (2002) 193 ALR 37) ("Te"). 2 During the period 1999-2001 the applicant committed a number of criminal offences for which he was convicted and imprisoned. Those offences included breaking and entering, non-aggravated serious criminal trespass, common assault and various theft offences. He was imprisoned to five terms of imprisonment totalling twenty-seven months. 3 On 5 February 2003 the respondent, acting pursuant to section 501(2) of the Migration Act 1958 (Cth) ("the Act") purported to cancel the applicant's visa. The decision of the respondent was expressed as follows: "I have considered all relevant matters including (1) an assessment of the Character Test as defined by s 501(6) of the Migration Act 1958, (2) my Direction under s 499 of that Act and Mr Schwart's comments and have decided that: I reasonably suspect that Mr Schwart does not pass the character test and Mr Schwart has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa." 4 The legal effect of the cancellation of a visa, at least in this case, is that the applicant became an "unlawful non-citizen" liable to detention (see s 189 and s 196 of the Act). He was detained on 12 February 2003 and remains in detention. 5 Section 501 of the Act provides, so far as is relevant: "501 Refusal or cancellation of visa on character grounds (1) … (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) …. Otherwise, the person passes the character test. (7) For the purposes of the character test, a person has a substantial criminal record if: … 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; …" 6 It is clear from the terms of subs (6) and subs (7) of s 501 that the applicant did not pass the character test. On that basis it is clear that the respondent had a discretion under s 501(2) of the Act to cancel the applicant's visa. 7 It is clear that the Minister's decision took account of and was based upon a Departmental report. That report was headed in bold letters: "ISSUES FOR CONSIDERATION OF POSSIBLE CANCELLATION OF SUBCLASS 155 – FIVE YEAR RESIDENT RETURN VISA UNDER S 501(2) OF THE MIGRATION ACT, 1958" The reference in the heading to the applicant's visa as a "Subclass 155 Five Year Resident Return Visa" is in error. So much is admitted. 8 The Departmental Report is some 19 pages long plus annexures. Other aspects of the report do correctly set out the facts. For example, at the bottom of pages one and the top of page two the following appears: "Immigration History of Visa Holder Date of entry into Australia 2nd December, 1984 Visa Class Residence Visa Category K11412 Visa Expiry date N/A Stay Period of Visa Indefinite Previous Absences from Australia Nil " Pages 15-16 of the Report refer to the fact that the applicant has a family living in Australia comprising at least his parents and a brother. Otherwise the report deals generally with the applicant's criminal history, notwithstanding that it was plain from the public record that the applicant could not pass the character test. Apart from the above information there is little or no information within the report dealing with the extent or otherwise to which the applicant was integrated into the Australian community. This information would obviously have been of interest to the Minister, pointing, as it does, to whether or not "the activity of immigration has come to an end" (Gleeson CJ in Te at [26]. Also Gummow J at [108]). 9 (I note that in the course of submissions I was very critical of the Departmental Report on the basis that it did not contain information which, it seemed to me, the Minister should have been given if only as good practice. It would appear that the copy of the report on which I was then relying was missing several pages with the result that my criticism of the report, or at least the vigour of it, was unfair). 10 The annexures to the report do deal in some more detail with this issue of integration. In particular, the applicant's letter to the Department dated 25 June 2002 does so in some detail as does a further letter of 22 January 2003 (which also reveals that the applicant has a half-sister living in Australia who is an Australian citizen). The Minister's decision refers to "Mr Schwart's comments", but it is not clear to me at least whether this refers to the whole of the letters or only those parts of the letters extracted in the Report. Although those extracts are extensive they do not include all of the information in relation to integration. 11 Finally, by way of background, I note that the notice given to the applicant of the cancellation of his visa pursuant to s 501G of the Act described his visa as a "Special category Visa (Sub-Class 444)", a visa applicable only to citizens of New Zealand. Apart from the further embarrassment to the Department, it is not suggested that this further error is otherwise relevant to the issues before me. 12 The applicant has instituted proceedings in this Court for judicial review pursuant to s 39B of the Judiciary Act 1903 (Cth). The applicant also seeks various ancillary orders, including habeas corpus and declarations. 13 The powers of this Court on any review are limited in a number of ways. This includes the limitations within s 39B of the Judiciary Act 1903 (Cth) (including whatever limitations are contained within s 75(v) of the Commonwealth Constitution). It also includes the provisions of s 474 of the Act as understood in the light of the recent High Court decisions in S134/2002 v Commonwealth of Australia[2003] HCA 2 ("S134") and S157/2002 v Commonwealth of Australia[2003] HCA 2 ("S157"). Section 474 provides: "474 Decisions under Act are final (1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. (2) In this section: "privative clause decision" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5). (3) A reference in this section to a decision includes a reference to the following: (a) granting, making, suspending, cancelling, revoking or refusing to make an order or determination; (b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa); (c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument; …"