Case: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50
Outcome: referred to
These proceedings were commenced on 20 December 2005 as an application for a declaration that the applicant, who had been removed from Australia, was entitled to an absorbed person visa pursuant to s 34 of the Migration Act 1958 (Cth) (the Act). The applicant also sought an order that the respondents arrange the return of the applicant to Australia, a declaration of wrongful imprisonment and damages. Since then, a number of events have occurred which have altered the issues that need to be determined. First, the applicant has been returned to Australia by the Commonwealth. Secondly, the High Court has given judgment allowing an appeal against a judgment of a Full Court of this Court. The Full Court's judgment underpinned part of the case originally advanced by the applicant. The parties agreed that judgment in this matter could be reserved until the High Court gave its judgment. The High Court gave judgment, Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 , on 8 November 2006. The judgment of the High Court had the effect of removing two of the grounds relied on by the applicant. The High Court's judgment is discussed shortly. 2 The facts agreed upon by the parties were as follows. The applicant was born in Paris, France on 4 December 1966 to parents who were then both citizens of Yugoslavia. In 1968, when the applicant was two years of age, his parents migrated to Australia with him and his siblings. The applicant and his family members were granted permanent entry permits on their arrival into Australia. In 1983, the applicant's parents became Australian citizens. The applicant was not included in his parents' application for citizenship. From 19 September 1984 to 4 November 1984, the applicant travelled with his father to that part of Yugoslavia which, up until very recently, was known as Serbia and Montenegro, and then returned to Australia as the holder of an old visa of a kind known as a "Return Endorsement". 3 On 1 September 1994, the applicant became the holder of a transitional (permanent) visa by operation of reg 9 the Migration Reform (Transitional Provisions) Regulations 1994 (Cth). Between 1979 and 2001, the applicant was convicted of a number of criminal offences. On 15 October 2002, the then Minister for Immigration and Multicultural and Indigenous Affairs made a decision pursuant to s 501(2) of the Act to cancel the applicant's transitional (permanent) visa. The applicant was removed from Australia on 18 June 2004. 4 Before the decision of the High Court in Nystrom the principal ground relied on by the applicant was that he held an absorbed person visa by operation of s 34 of the Act and that the failure of the Minister to take into account that he held that visa gave rise to jurisdictional error. One of the statutory criteria for that visa was that the applicant had not, on or after 2 April 1984, left Australia. The Minister contended this criterion had not been satisfied by the applicant having regard to his travel to Yugoslavia in late 1984. Submissions were directed to the meaning of "left Australia". 5 Another argument advanced by the applicant was that s 200, and not s 501, was the applicable source of the power on which the Minister might have acted and that there was a direct repugnance between s 501 and ss 200 and 201, with the result that the first respondent's decision was vitiated by jurisdictional error. 6 It is not necessary to consider those arguments in light of the High Court's decision which held that where a person held two visas (the same visas the applicant contends he held in this matter), each of which conferred the same substantive rights, in cancelling one the Minister was not bound to take into account the "nature" of the other because there was no consideration relevant to the applicant's absorbed person visa which was not relevant to and considered when the Minister cancelled his transitional (permanent) visa (at [129] per Heydon and Crennan JJ). Gummow and Hayne JJ held that nothing in the text of s 501 or s 501F provided any support for reading into s 501(2) a requirement to consider the possible effect of s 501F on the visa holder (at [41]). Even if the applicant held an absorbed person visa in addition to his transitional (permanent) visa, s 501F(3) operates to cancel the absorbed person visa. 7 The other issues which Nystrom resolved concerned whether there was repugnancy between ss 200 and 201, and s 501 of the Act. The issue was whether s 501 of the Act, as a general provision, yielded to the more specific provisions in s 200 and s 201 governing the deportation of non-citizens who have committed criminal offences with the result that the Minister had no power to cancel a visa under s 501 in circumstances governed by s 200 and s 201. 8 The High Court in Nystrom rejected this proposition and held that (at [61] per Gummow and Hayne JJ): ...the two powers do not deal with the same subject-matter so as to attract the operation of the maxim expressum facit cessare tacitum and the reasoning which underpins Anthony Hordern and other decisions. The scheme of the Principal Act does not treat as having the one identity deportation and cancellation of a visa. This is so notwithstanding that, by reason of other provisions of the Principal Act, the exercise of both powers may well result in the same practical outcome. and at [67], and [69]-[70]: The powers in s 501(2) and s 200 have different provenances, and persons in respect of whom a deportation order has been made have a different status and different rights under the Principal Act. Those differences cannot be ignored by an ellipsis which regards s 200 and s 501 as directed to the same practical outcome. ... Section 501(2) and ss 200 and 201 have different consequences for the status of individuals in the context of the Principal Act. Where a deportation order is made, the individual has the status of a lawful non-citizen who is subject to deportation. If an order under s 501(2) be made, the status of the individual changes to that of unlawful non-citizen. The Principal Act attaches significance to each status. Accordingly it is not open to characterise the powers as dealing with the same subject-matter in the sense of the Anthony Hordern line of cases. In the circumstances of this case, the inapplicability of s 200 (by reason of non-satisfaction of s 201(b)(i)) cannot deny the application of s 501(2) by reference to s 501(6)(a). 9 The remaining grounds in this matter concern the procedures adopted by the Minister in reaching the decision to cancel the applicant's transitional (permanent) visa. 10 The applicant submitted that Direction 21 required the decision-maker to consider certain international obligations found in the International Covenant on Civil and Political Rights (ICCPR). Direction 21 was made under s 499 of the Act which provides that the Minister may give directions to a person or body about the performance of functions under the Act or as to the exercise of powers under the Act, but such a direction must not be inconsistent with the Act or the Migration Regulations 1994 (Cth). A person or body receiving the direction must comply with the direction. Direction 21 concerns "visa refusal and cancellation under section 501 of the Migration Act 1958 ".