FEDERAL COURT OF AUSTRALIA Kinikini v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1144 MIGRATION – appeal from a decision of Federal Magistrates Court of Australia dismissing an application for relief challenging a decision by the Minister to exercise his discretion under s 501(2) of the Migration Act 1958 to cancel a Resident Return Visa on character grounds – whether taking into account seriousness of offence as such was an irrelevant consideration – whether decision to cancel was for purpose of double punishment – whether inconsistent with Ch III of the Constitution – appeal dismissed CONSTITUTIONAL LAW – whether cancellation of visa double punishment contrary to Ch III Constitution, Ch III Migration Act 1958 (Cth), s 501(2) Kinikini v Minister for Immigration [2005] FMCA 205, upheld Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65, followed Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 196 ALR 332, cited Dagli v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 298, cited Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151, followed Kamha v Australian Prudential Regulation Authority [2005] FCA 480, cited Minister for Immigration and Multicultural Affairs v W157/OOA (2002) 72 ALD 49, cited Re Minister for Immigration and Multicultural Affairs; Ex Parte Meng Kok Te (2002) 212 CLR 162, cited Shaw v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 143; 78 ALJR 203, cited Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172, followed NACANIELI KINIKINI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 462 OF 2005 GYLES J 18 AUGUST 2005 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 462 OF 2005 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: NACANIELI KINIKINI APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: GYLES J DATE OF ORDER: 18 AUGUST 2005 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 462 OF 2005 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: NACANIELI KINIKINI APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: GYLES J DATE: 18 AUGUST 2005 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal from a decision of Scarlett FM (Kinikini v Minister for Immigration [2005] FMCA 205) dismissing an application for relief challenging a decision made by the then Minister for Immigration and Multicultural and Indigenous Affairs on 30 June 2003 to exercise his discretion under s 501(2) of the Migration Act 1958 (Cth) (the Act) to cancel the Resident Return Visa of the appellant Nancanieli Kinikini. The short point is that it should have been found that a substantial purpose of the Minister's decision was the imposition of additional punishment on the appellant, that being an improper purpose or, alternatively, an irrelevant consideration. It is further contended that s 501(2) would be inconsistent with Ch III of the Constitution to the extent that it authorised the cancellation of a visa for a punitive purpose, as the imposition of punishment for criminal offences is an exclusively judicial function. 2 The appellant is a citizen of Fiji. He was born on 14 November 1980. He first arrived in Australia on 2 June 1990 with his parents. He has lived in Australia ever since, although he has spent three periods of up to a month out of Australia in that time. He is the holder of a Resident Return Visa pursuant to the Act. 3 On 23 January 2002 the appellant was sentenced to imprisonment for four years dating from 16 July 2001 with a non-parole period of two years for the indictable offence of robbery whilst armed with a dangerous weapon. He was also given concurrent sentences of nine months for assault occasioning actual bodily harm, 12 months for possessing a loaded firearm in a public place and 12 months for possessing an unauthorised firearm, namely a pistol. 4 On 12 December 2002 the appellant received a notice of intention to consider cancelling his visa and, after a response on his behalf, on 2 May 2003 the Department of Immigration and Multicultural and Indigenous Affairs sent a memorandum to the Minister entitled 'Issues for consideration of possible visa cancellation of Resident Return Visa under s 501(2) of the Migration Act 1958' (the Issues Paper). On 30 June 2003 the Minister signed a document in the following terms: 'I reasonably suspect that Mr Kinikini does not pass the character test and Mr Kinikini 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.' 5 When the proceeding came on for hearing before the learned Federal Magistrate the decisions to be given in Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 and Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172 were reserved but were delivered prior to the decision by Scarlett FM and were taken into consideration in that decision. 6 The appellant's case was that the Issues Paper set out the matters taken into account by the Minister and expressly referred to three impermissible considerations: the possibility that cancellation of the appellant's visa might deter others (identified as 'an important factor'), the seriousness of what the appellant had done and the expectation of the Australian community that non-citizens 'obey Australian laws while in Australia', all indicating double punishment for the offences committed. 7 Having analysed the Full Court decisions in Djalic and Tuncok, Scarlett FM was not satisfied that the Issues Paper gave any indication that the decision was activated by any purpose other than the legitimate purpose of protecting the Australian community. The proceeding was dismissed. 8 By the time this appeal came on for hearing the High Court of Australia had refused to grant special leave to appeal from the judgment of the Full Court in Djalic on the basis that there was no reason to doubt the correctness of the decision. 9 Before examining the appellant's argument, it should be noted that it was submitted for the Minister (as it had been submitted before Scarlett FM) that there is no evidence of the Minister's reasons and thus no basis upon which any relevant argument can be founded. It was submitted that the Issues Paper is not a statement of reasons (Minister for Immigration and Multicultural Affairs v W157/OOA (2002) 72 ALD 49, especially at [41]–[55], [72], [85], [89] and [107]; Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 196 ALR 332 at [53]–[57]; Dagli v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 298 at [61]). It was submitted for the appellant that the evidence established that the Minister had taken into account the Issues Paper in reaching the decision in issue. 10 Assuming for the purpose of argument that the appellant to be correct in this, it is submitted for the appellant that the reasoning of the Full Court in Djalic is consistent with the basic premise upon which the appellant's argument proceeds based upon the following passage: '[I]f in a particular case the decision-maker purports to exercise the statutory power to cancel the visa of a non-citizen or to deport the non-citizen [in] order to punish the non-citizen and not for protection of the Australian community or some other legitimate objective, the exercise of power may be ultra vires the statute. (206 ALR at 504 [66])' 11 However, counsel for the appellant concedes that the decisions in Djalic and Tuncok establish that taking into account 'expectations of the community' and deterrence do not give a punitive character to the decision to cancel the appellant's visa. The appellant maintains the formal submission that Djalic and Tuncok were wrongly decided in that respect. It is further submitted that the reasoning in Djalic and Tuncok does not deal with one of the considerations relied on in the present case – the seriousness of the appellant's conduct – and so the decisions are distinguishable. 12 It is submitted that to consider the seriousness of what a person has done as an independent reason for cancelling a visa, divorced from issues such as the likelihood of re-offending, can only be seen as imposition of further punishment for the conduct and as such is fundamentally invalid in that the decision purports to do something that s 501(2) cannot and does not authorise, namely, the exercise of part of the judicial powers of the Commonwealth. The decision could be described as being made for an improper purpose of punishing the appellant for the criminal offences he had committed or, alternatively, an irrelevant consideration was taken into account in making it. It was accepted that the seriousness of the offence could properly be taken into account in what was described as a 'calculus of risk' based on the likelihood of the visa holder re-offending and the seriousness of the offences he or she might commit in that event. However, it is submitted that the Issues Paper addressed the seriousness of conduct as the first and separate element and presented it to the Minister as a relevant consideration in itself. 13 It is submitted by counsel for the Minister that the appellant's arguments cannot stand with Djalic and Tuncok and with the decision of the Full Court in Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65 particularly at [104]–[106]. It is submitted that s 501 inherently requires that regard be had to the seriousness of criminal conduct and it was pointed out that the section fastens upon particular categories of conduct with particular sentences. A law which provided for the mandatory removal of aliens who had been convicted of particular offences and types of offences would be valid so it must be permissible for such a consideration to be taken into account in the exercise of an unfettered discretion which is triggered in that way. It is also submitted that, even if the Issues Paper is taken into account, it cannot be found that the Minister in fact took into account the seriousness of the offence per se. The Issues Paper dealt with many aspects of the matter in the context of protection of, and the expectations of, the Australian community. 14 I am not sympathetic to the executive government punishing people in order to deter others (cf Kamha v Australian Prudential Regulation Authority [2005] FCA 480 at [23]–[33]). However, s 51(xix) of the Constitution (the aliens power) is not to be read down (Shaw v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 143; 78 ALJR 203; Re Minister for Immigration and Multicultural Affairs; Ex Parte Meng Kok Te (2002) 212 CLR 162). Parliament is entitled to say that the Australian community should not include aliens who have committed certain types of offence. That is, in essence, one of the effects of s 501 by preventing entry or cancelling visas held by persons who are said to have statutory bad character, albeit that there is a discretion vested in the Minister. If it would be permissible to unconditionally exclude persons on that basis, it must be permissible to do so conditionally upon an unfettered Ministerial discretion. It is not at all surprising that conviction of crimes of a certain seriousness would be a statutory criterion of bad character for those purposes. In my opinion, it cannot be said that the seriousness of the offences in question was an irrelevant consideration for the exercise of the unfettered discretion to be exercised by the Minister, or that the decision was made for the improper purpose of punishing the appellant. 15 Therefore, on the assumptions that the Issues Paper was taken into account by the Minister and that the seriousness of the offences was taken into account as a separate factor, the appellant has not established any appealable error in the judgment of Scarlett FM. The appeal is dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 18 August 2005 Counsel for the Appellant: G Kennett Solicitor for the Appellant: Christopher Levingston & Associates Counsel for the Respondent: GT Johnson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 26 May 2005 Date of Judgment: 18 August 2005