Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gummow,Hayne JJ.,Heydon,Crennan JJ
• Judgment Date: 08 November 2006
• Neutral Citation: [2006] HCA 50,2006-1108 HCA A
• Court: High Court
• Date: 08 November 2006
• Docket Number: M5/2006

[2006] HCA 50

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gummow, Hayne, Heydon AND Crennan JJ

M5/2006

Minister for Immigration and Multicultural and Indigenous Affairs

Appellant

and

Stefan Nystrom

Respondent

Migration Act 1958 (Cth), ss 198, 200, 201, 501(2), 501(6), 501F.

Migration Amendment Act 1983 (Cth).

Migration Legislation Amendment Act 1989 (Cth).

Migration Reform Act 1992 (Cth).

Migration Legislation Amendment Act 1994 (Cth).

Migration Reform (Transitional Provisions) Regulations (Cth).

Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom

Immigration — Cancellation of Visas — s 501(2) of the Migration Act 1958 (Cth) (‘the Act’) — Where Minister purported to cancel a ‘transitional (permanent) visa’ on the basis of the respondent failing the character test in s 501(6) of the Act — Where respondent had a substantial criminal record — Where respondent had lived in Australia since he was 27 days old — Where respondent held an ‘absorbed person visa’ — Whether the respondent also held a ‘transitional (permanent) visa’ — Whether as a matter of construction the Act allowed the respondent to hold both an ‘absorbed person visa’ and a ‘transitional (permanent) visa’.

Administrative law — Decision of Minister under s 501(2) or s 503 of the Act — Jurisdictional error — Whether there was a misdescription of a visa which invalidated the Minister's decision — Whether a failure to take into account relevant considerations invalidated a decision — Whether the Minister's cancellation of a ‘transitional (permanent) visa’ and disregard of the ‘absorbed person visa’ amounted to jurisdictional error — Where s 501F(3) would operate to cancel both visas.

Statutes — Statutory Construction — expressum facit cessare tacitum — Where s 201 of the Act excludes certain persons from the scope of the Minister's power to deport pursuant to s 200 of the Act — Where the respondent was a person covered by s 201 and also not an object of the power to deport pursuant to s 200 — Whether s 201 of the Act confers a protection against deportation — Whether the subject matter of ss 200, 201 and 501 of the Act is the same, dealing with the removal of persons who have been convicted of offences from Australia — Whether the Minister's lack of power to deport the respondent under s 200 limits the Minister's power to cancel a visa under s 501 — Whether s 501 repugnant to ss 200 and 201 so as to necessitate s 501 being read subject to ss 200 and 201.

Words and Phrases — ‘implied repeal’, ‘expressum facit cessare tacitum’, ‘accrued statutory right’.

1 Gleeson CJ. I have had the advantage of reading in draft form the reasons for judgment of Heydon and Crennan JJ. I agree with the orders proposed by their Honours, and with their reasons for those orders.

Gleeson CJ

2 As to the issue concerning the effect, if any, upon s 501(2) of theMigration Act 1958 (Cth) of ss 200 and 201 of that Act, I would make the following comment. The contention that ss 200 and 201 give a person in the position of the respondent a protection or immunity from the exercise of the power conferred by s 501 is a statement of a conclusion, rather than an expression of a reason for reaching that conclusion. If there is such a reason, it must be found in a process of statutory construction. The provisions of s 501(2), on the one hand, and ss 200 and 201 on the other, are not repugnant, in the sense that they contain conflicting commands which cannot both be obeyed, or produce irreconcilable legal rights or obligations. They create two sources of power, by which a person in the position of the respondent may be exposed, by different processes, and in different circumstances, to similar practical consequences. There is nothing novel, or even particularly unusual, about that. It does not of itself mean that only one source of power is available. If, however, by reason of the apparent exhaustiveness with which one provision, or group of provisions, dealt with the position of a person such as the respondent, there were an incompatibility of a kind that required a conclusion that only one provision or group of provisions was intended to apply, then that would be a reason for accepting the respondent's contention1. Again, if one provision, or group of provisions, were directed with particularity to the case of a person such as the respondent, and the other were merely of general application, the same could be said2. As explained by Heydon and Crennan JJ, and also by Gummow and Hayne JJ, neither proposition can be made good when regard is had to the legislative history and context. In the result, the respondent's contention amounts to an assertion; a statement of an outcome that would be supportive of his freedom to remain in Australia, and in that sense protective of his interests, but

without a convincing argument of statutory construction which sustains that outcome. Therefore, it fails.

3 Gummow AND Hayne JJ. The facts and the course of the litigation are recounted in the reasons of Heydon and Crennan JJ and only a brief reference to them is required here. The respondent is in a similar position to the applicant in Shaw v Minister for Immigration and Multicultural Affairs3. He is a constitutional alien, and a citizen of Sweden, who has resided in Australia since 27 January 1974. This was four weeks after his birth. He has a substantial and serious criminal record. On 12 August 2004, the appellant (‘the Minister’) made a decision pursuant to s 501(2) of the Migration Act 1958 (Cth) (‘the Principal Act’) to cancel the respondent's visa on character grounds. This rendered him an ‘unlawful non-citizen’ and liable to removal from Australia pursuant to s 198 of the Principal Act.

Gummow

4 Section 501(2) is in the following terms:

‘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.’

Section 501(6) provides inter alia that a person does not pass the character test if he or she ‘has a substantial criminal record (as defined by subsection (7))’. The respondent had such a record, and the Minister cancelled his visa in reliance solely upon that circumstance.

5 The Minister's decision was a privative clause decision for the purposes of s 474 of the Principal Act and can only be set aside for jurisdictional error. The respondent was successful in establishing jurisdictional error before the Full Court of the Federal Court4. The Minister now appeals to this Court.

The issues on appeal

6 The alleged jurisdictional error arises as follows. Both parties now agree that the respondent held an ‘absorbed person visa’. However, the Minister, in exercising the power under s 501(2) of the Principal Act, believed herself to be cancelling a different class of visa, namely a ‘transitional (permanent) visa’. The respondent claims he never held such a visa. The Minister claims that he did,

and that the decision to cancel it took effect, by reason of s 501F(3) of the Principal Act, also as a decision to cancel the absorbed person visa. Section 501F relevantly provides:

‘(1) This section applies if the Minister makes a decision under section 501, 501A or 501B to refuse to grant a visa to a person or to cancel a visa that has been granted to a person.

…

(3) If:

• (a) the person holds another visa; and

• (b) that other visa is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection;

the Minister is taken to have decided to cancel that other visa.’

The absorbed person visa was not within the classes of visa excluded by s 501F(3)(b) from the operation of that section.

7 Several related issues arise from this situation. The first issue is whether the Principal Act permits a person to hold simultaneously an absorbed person visa and a transitional (permanent) visa. The second issue is whether the respondent held a transitional (permanent) visa in addition to his absorbed person visa. If the respondent did so, the third issue arises, namely, whether in the light of s 501F(3) of the Principal Act the Minister fell into jurisdictional error in failing to consider the existence ofboth the visas he held. On the other hand, if the respondent did not consider both visas, the fourth issue arises, namely, whether the Minister's decision was nevertheless unaffected by jurisdictional error because she understood the nature of the visa she was cancelling although she misdescribed it.

8 In the Full Court, the majority (Moore and Gyles JJ) did not decide the first and second issues; they held that in any event the respondent succeeded on the third and fourth issues. Emmett J would have given an affirmative answer on the first two issues and resolved the third issue in favour of the Minister (with no need to consider the fourth issue). The appeal to this Court was presented in a fashion which makes it impossible to skirt the first two issues; the respondent by notice of contention asserts that, as a matter of construction of the Principal Act, only one visa could be granted, and that was the absorbed person visa.

9 There is a fifth distinct issue, also arising from the respondent's notice of contention. This is whether the power under s 501(2) is unavailable in thecircumstances that obtained in this case where there was no power to deport the respondent under ss 200 and 201 of the Principal Act. The fifth issue was not considered in detail in the Full Court, although the majority did appear to consider that it favoured the respondent's case5.

The legislative history concerning visas

10 The first two issues may be considered together. They stem from the tortuous legislative history, and in particular from the intersection in the Principal Act of...