Watson v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1654

FEDERAL COURT OF AUSTRALIA

Watson v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1654 MIGRATION – cancellation of visa on character grounds – letter sent to removee that no further action will be taken to effect his removal from Australia – whether cancellation of visa revoked Migration Act 1958 (Cth) s 501 Judiciary Act 1903 (Cth) s 39B Minister for Immigration and Multicultural and Indigenous Affairs v Craig [2004] FCAFC 294 followed IRWIN WATSON v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS No Q 83 of 2004 SPENDER J BRISBANE 15 DECEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 83 OF 2004

BETWEEN: IRWIN WATSON

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SPENDER J

DATE OF ORDER: 15 DECEMBER 2004

WHERE MADE: BRISBANE

THE COURT DECLARES THAT: 1. The cancellation of the Transitional (Permanent) Visa of Irwin Watson was revoked by the letter of 13 September 2001. THE COURT ORDERS THAT: 2. The Respondent pay the costs of the applicant of and incidental to the appeal, to be taxed if not agreed. 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 83 OF 2004

BETWEEN: IRWIN WATSON

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SPENDER J

DATE: 15 DECEMBER 2004

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 Irwin Watson was born in Scotland on 27 March 1973. According to a chronology of the appellant, he arrived in Australia on 14 April 1973, aged less than three weeks. In the Decision Record of the Respondent, he is said to have entered Australia on 14 July 1973, when he was aged three months. He has lived in Australia ever since. During that time he has acquired a lengthy criminal history. 2 On 11 July 2000 in the District Court in Brisbane, he was convicted of a number of offences, and was sentenced to two years imprisonment, eligible for parole after serving nine months. While in prison, he was given notice by the respondent Minister of an intention to cancel his Transitional (Permanent) visa under s 501(2) of the Migration Act 1958 (Cth), ('the Act') on the ground that he failed the "character test". On 10 March 2001 the Minister cancelled his visa. 3 On 13 September 2001 the Department of Immigration and Multicultural Affairs ('the Department') wrote informing Mr Watson that: '… the Department will no longer be proceeding with your removal following the conclusion of the custodial element of your sentence.' 4 On 25 January 2002, Mr Watson was released into the community. On 15 March 2004 the Department changed its mind, and wrote to him, saying: '… the decision of the Minister to cancel your visa under section 501 of the Migration Act 1958 stands, and you are liable to be detained under s189 of the Migration Act 1958 and removed from Australia.' 5 On 19 May 2004 Mr Watson's then custodial sentence ended, and the applicant was placed in immigration detention. 6 Notwithstanding that it seems extraordinarily unfair to Scotland to send Mr Watson there (since Mr Watson's only connection with Scotland is that his father was born there, he himself was born there, and he spent the first few months of his life there), the Minister wishes to remove him from Australia to Scotland. Mr Watson does not want to go. 7 Hence this application pursuant to s 39B of the Judiciary Act 1903 (Cth) ('the Judiciary Act'). 8 It is necessary to set out the facts in considerably more detail. 9 On 24 May 1945 the applicant's mother, Hendrieka Watson, was born in Holland. On 27 June 1947 the applicant's father, Irwin Watson, was born in Scotland. In 1956 the applicant's mother arrived in Australia, then aged eleven. On 27 May 1966 the applicant's half brother, Michael Watson, was born to Hendrieka Watson. On 20 December 1969 the applicant's father and mother married in Australia. On 20 September 1970 the applicant's brother, George Watson, was born. At about the end of 1971 the applicant's parents and his brothers left Australia for an extended holiday in Scotland. 10 On 27 March 1973 the applicant was born in Scotland. 11 In either April 1973 or July 1973, the applicant's parents and brothers returned to Australia, and the applicant arrived in Australia. On 17 February 1975, before the applicant was two years old, his father died in Australia. 12 The applicant's criminal history commenced on 29 July 1991 when he was convicted of being found on premises without lawful excuse. On 2 April 1993 he was convicted of receiving, forgery and uttering. On 10 December 1993 he was convicted of unlawful use of a motor vehicle, wilful and unlawful destruction of property, and assault occasioning bodily harm. On 9 January 1997 he was convicted of behaving in a disorderly manner, obstructing police and abusive words. On 12 March 1999 he was convicted of breach of the Bail Act. On 4 October 1999 he was convicted of again breaching bail conditions. On 12 January 2000 he was convicted of wilfully trespassing on a railway. 13 On 11 July 2000 he was sentenced in the Brisbane District Court for: '5 Charges of Enter Premises and Commit an Indictable Offence + Break, and 1 Charge of Enter or In Premises with Intent + Break, imprisonment for two (2) years on each charge; Enter Premises and Commit an Indictable Offence + Break, imprisonment for twelve (12) months; Attempted Unlawful User of Motor Vehicle, imprisonment for two (2) years; One (1) charge of Enter Dwelling with Intent to Commit an Indictable Offence + Break and two (2) charges of Serious Assault, imprisonment for twelve (12) months on each charge.' - adopting the description in the Department's Notice of Intention to Cancel Visa under Subsection 5012(2) of the Migration Act 1958 dated 7 September 2000. 14 Section 501 of the Act relevantly provided: …(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); … 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; …' 15 On 7 September 2000 an officer of the Department of Immigration and Multicultural Affairs who was delegated to cancel or refuse visas under s 501 wrote to the applicant, which letter said in part: 'NOTICE OF INTENTION TO CANCEL VISA UNDER SUBSECTION 501(2) OF THE MIGRATION ACT 1958 You are currently the holder of a Transitional (Permanent) Visa. This visa is currently your sole authority to remain in Australia. It has come to the attention of the Department that this visa may be liable to cancellation under Section 501 of the Migration Act 1958 (the Act). The relevant ground is: s.501(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));' 16 The letter notified that the writer considered that the applicant had a substantial criminal record within the meaning of s 501(7)(c). The letter extended an opportunity to comment on the possible exercise of the power to cancel the applicant's visa, and said: 'In reaching a decision whether or not to cancel, the Minister or his or her delegate will have regard to the matters noted above and the attached Minister's Direction No. 17 titled "Direction under Section 499 – Visa Refusal and Cancellation under Section 501 Migration Act 1958".' 17 On 12 September 2000 the applicant acknowledged receipt of the Notice of Intention to Cancel Visa, a copy of s 501 of the Migration Act 1958 and a copy of the direction under s 499 Visa Refusal and Cancellation under s 501 of the Migration Act 1958, Direction No. 17. 18 On 15 November 2000 an officer of the Department wrote to Mr Watson advising that no response had been received from him, and that if no comment had been provided by 29 November 2000, a submission would be prepared for the Minister on the basis of information on file. 19 On 1 December 2000 a correctional officer from Caboolture Community Corrections forwarded an Immigration Report to the Department. Amongst other things that report indicated a high risk of recidivism, and indicated that on release he would have no support from any of his family members. 20 On 18 January 2001 an officer of the Department wrote to the applicant advising him of some of the details contained in the Immigration Report of 1 December 2000 and inviting him to comment. The applicant made no submissions in response to that invitation, and on 16 March 2001 the applicant was advised by an officer of the Department that: 'After careful consideration of the available information, the Minister for Immigration and Multicultural Affairs has decided to cancel your visa pursuant to s.501(2) of the Act. The particular ground under which you do not pass the Character Test is subsection 501(6)(a) of the Act.' The letter advised: 'Please note that as the decision to cancel was made by the Minister personally, the Administrative Appeals Tribunal (AAT) cannot review the decision.' 21 The Decision Record, which was enclosed with the letter advising of the cancellation of the applicant's visa, was said in that letter to set out the reasons for the decision. That record indicates that the applicant entered Australia on 14 July 1973. Paragraph 5 of that Decision Record states: 'If you are satisfied that Mr WATSON does not pass the character test you must consider the exercise of your discretion to decide whether Mr WATSON should be permitted to remain in Australia. In exercising your discretion you should consider the guidelines of your Direction No. 17 made under s.499 of the Migration Act 1958. While you are not bound by the section 499 direction on character in relation to exercising your discretion, it is a useful guide for the matters that you should consider and contains three primary considerations and a number of other relevant considerations that need to be addressed.' 22 The Decision Record referred, in particular, under the heading "Primary Considerations", to: 'Protection of the Australian Community' including '(a) seriousness and nature of conduct … (b) likelihood that the conduct may be repeated (including any risk of recidivism) … (c) General deterrence … The Expectations of the Australian Community … The Best Interests of the Children … Other Considerations.' 23 Under the heading "Other International Obligations", the Decision Record said: 'Mr WATSON has not made any claims which require assessment in relation to international obligations' and said under the heading "Any other relevant considerations": 'All matters raised have been addressed in line with the Direction.' 24 The fact is that no matter had been raised by or on behalf of the applicant to the Minister or the Department. 25 Mr Philip Ruddock, the then Minister, on 8 March 2001, signed a decision expressed in the following terms: 'I have considered all relevant matters … and have decided that: … (c) I reasonably suspect Irwin WATSON does not pass the character test and Irwin WATSON has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION TO CANCEL THE VISA so I hereby cancel the visa' 26 An officer of the Department wrote to the Sentence Management Co-ordinator at Wolston Correctional Centre on 16 March 2001 notifying that the applicant's visa was cancelled by the Minister on 8 March 2001, and that his status in Australia from this date is that of an unlawful non-citizen. On 21 March 2001 the applicant acknowledged that he had received the original of his Notice of Visa Cancellation under subsection 501(2) of the Act, as well as other documents. 27 On 13 September 2001 an officer of the Department wrote to the applicant, care of the Wolston Correctional Centre, in the following terms: 'Dear Mr Watson Following a recent High Court decision, advice has been received from the Australian Government Solicitor (AGS) which indicates that the Minister for Immigration and Multicultural Affairs does not have the power to deport or remove certain British subjects who arrived prior to 1973. This decision affects individuals who are the subject of deportation orders or whose visas have been cancelled under section 501, 501A or 501B of the Migration Act 1958, and who arrived in Australia as British subjects as permanent residents prior to 1973. As you fall within this category, the Department will no longer be proceeding with your removal following the conclusion of the custodial element of your sentence.' 28 On 20 September 2001 an officer of the Department wrote to the Sentence Management Co-ordinator at Wolston Correctional Centre in the following terms: 'PERSONS NO LONGER OF INTEREST Following a recent High Court decision, advice has been received from the Australian Government Solicitor (AGS) which indicates that the Minister for Immigration and Multicultural Affairs does not have the power to deport or remove certain British subjects who arrived prior to 1973. This decision affects individuals who are the subject of deportation orders or whose visas have been cancelled under section 501, 501A or 501B of the Migration Act 1958, and who arrived in Australia as British subjects as permanent residents prior to 1973. As a result of this decision, the following persons currently located in your facility are no longer of interest to the Department of Immigration and Multicultural Affairs: NAME Date of Birth Citizenship … WATSON, Irwin 27/03/1973 United Kingdom … Please note in respect of … and WATSON, the Department will no longer be proceeding with removal of these persons following the conclusion of the custodial element of their sentences.' 29 On 15 March 2004 an officer of the Department, now called the Department of Immigration and Multicultural and Indigenous Affairs, wrote to the applicant in the following terms: 'On 13 September 2001 the Department wrote to you to inform you that no further action would be taken to enforce the decision to cancel your visa under section 501 of the Migration Act 1958 dated 08 March 2001. This followed a decision of the High Court that indicated that certain British subjects who arrived in Australia prior to 1973 were not 'aliens', and could not be deported or removed, under the Migration Act 1958. In a more recent decision, a majority of the High Court has departed from the previous decision and held that British subjects who arrived after 26 January 1949 and have not been naturalised are 'aliens' for the purposes of the Migration Act 1958. I refer you to the decision of Shaw v MIMIA [2003] HCA 72 (9 December 2003) which now represents the law. As a consequence, the decision of the Minister to cancel your visa under section 501 of the Migration Act 1958 stands and you are liable to be detained under s189 of the Migration Act 1958 and removed from Australia. You are hereby notified of the Department's intention to enforce the decision to cancel your visa of 08 March 2001. Accordingly, you will be liable for removal from Australia at the conclusion of your sentence.' 30 On 18 March 2004 an officer of the Department wrote to the Officer in Charge of the Wolston Correctional Centre in the following terms: 'I, Christopher James O'KEEFE', am an officer for the purposes of the Migration Act 1958 (the Act). You currently hold Mr Irwin WATSON (27/03/1973 UK)in custody. Pursuant to section 254 of the Act, from the time at which his/her custodial sentence is completed, he/she is liable to be held in immigration detention under the Act, as he/she is a removee or deportee. Under section 5 of the Act, a person is in immigration detention, if being held by or on behalf of an officer at a place specified in paragraph (b) of that definition ('a place of immigration detention'). You are hereby required to hold him in Wolston Correctional Centre, a place of immigration detention, from the time at which his/her custodial sentence is completed until he is collected by officer of Global Expertise in Outsourcing, Officers authorised under the act, for transfer to Immigration Detention in Arthur Gorrie Correctional Centre and subsequent removal from Australia.' 31 On 21 May 2004 the applicant filed an application for relief pursuant to s 39B of the Judiciary Act. That application recited: