Case: MIMIA v SGLB [2004] HCA 32 ; (2004) 207 ALR 12
Outcome: cited
In MIMIA v SGLB [2004] HCA 32 ; (2004) 207 ALR 12, Gummow and Hayne JJ (with whom Gleeson CJ agreed) indicated at [49] that the nature of the alleged error in Plaintiff 157 was the denial to the plaintiff of jurisdictional fairness. 137 Their Honours in [50] and [51] turned to other cases where the nature of the alleged error turned on the meaning of the legislative criterion of jurisdiction. Their Honours said: [50] In other cases, the nature of the alleged error will turn upon the meaning of the legislative criterion of jurisdiction, making the construction of the legislation the primary and essential task. Re Minister for Immigration and Multicultural Indigenous Affairs; Ex parte Applicants S134/2002 was such a case. The court divided on the question whether, on the proper construction of the relevant regulations under the Act, as picked up by s 65(1), the tribunal had been obliged to determine to its satisfaction whether applicants were entitled to protection visas by reason of membership of the family unit of a person who had already been granted a protection visa. The majority answered "no"; Gaudron and Kirby JJ were of the other view. [51] However, in the light of the detailed specification of the criteria for the grant of the various classes of visa, including protection visas, it is impossible to treat the consideration by the minister's delegate (and hence the tribunal) of what are the relevant criteria (the issue in Applicants S134 ), and the satisfaction thereof, as other than conditions precedent to the making of a valid decision to grant or refuse to grant a visa under s 65. Further, certain observations by Gaudron and Kirby JJ in Applicants S134 (not on an issue upon which the division in the court turned) are, with respect, compelling. Their Honours said: The detailed specification of matters bearing upon the grant of a protection visa inserted into the Act at the same time as was s 474 makes it clear that the Parliament was not enacting provisions to the effect that decision-makers could validly grant or refuse to grant protection visas on the basis of a bona fide attempt to determine whether the criteria for the grant of a protection visa have been satisfied, as distinct from the decision-maker's actual satisfaction or lack of satisfaction as to those criteria. And as already pointed out, a decision-maker cannot be said to be satisfied or not satisfied if effect is not given to those criteria because, for example, they have been misconstrued or overlooked. 138 The grounds of the application to this Court by Dr Haneef are: 1. The Respondent fell into jurisdictional error by deciding that the threshold requirement under s.501(3)(c) of the Migration Act had been satisfied based on upon misconstruction of the expression "association" in s.501(6)(b). 2 . The Respondent fell into jurisdictional error by failing to take into account a relevant consideration in the exercise of the discretion under s.501(3) , namely: (a) the nature and extent of the alleged "association" between the Applicant and the persons whom the Respondent suspected of criminal conduct; (b) the weakness or strength of the evidence supporting the charge against the Applicant; (c) hardship to the Applicant as a result of the cancellation; ... 3. The Respondent fell into jurisdictional error by taking irrelevant considerations into account in the exercise of the discretion under s.501(3) , namely: (a) that the Applicant had been granted bail by the Brisbane Magistrates Court; (b) that the "Australian Government has a strong interest in deterring non-citizens from providing support to terrorist organisations/networks", when the Applicant has not been convicted of any offence involving provision of such support. 4. The Respondent's purpose in cancelling the visa under s.501(3) was to allow the Applicant to be detained when he had been granted bail and that was an improper purpose. Particulars (a) The Respondent knew that the Applicant had been granted bail on 16 July 2007; (b) the Respondent expressly took into account that that Applicant had been granted bail in making his decision to cancel the Applicant's visa; (c) the Respondent cancelled the visa on 16 July 2007 within several hours of the decision to grant bail being made; (d) the Respondent had not previously notified the Applicant that he was considering the cancellation of the visa; (e) on 16 July 2007 the Respondent also knew that the Commissioner of the Australian Federal Police intended to ask the Attorney-General to issue a criminal justice stay certificate, or believed that the Commissioner had the power to issue such a certificate himself; (f) on 17 July 2007 the Respondent informed the media that the Applicant would remain in detention until his trial; (g) the Respondent knew that if he cancelled the visa and a criminal justice stay certificate was issued by the Attorney-General, ss.150 and 152 of the Migration Act would operate to require that the Applicant be kept in immigration detention pending his trial; (h) a criminal justice stay certificate will be issued which will operate to authorise the detention of the Applicant; (i) the purpose of the Respondent is to be inferred from the matters set out above. 139 It is to be noted, particularly in the light of ground 4, that ground 3(a) was not pressed by the applicant in these proceedings. 140 It is necessary to consider each of these grounds in turn. 141 The argument for the application on this ground focuses on the four paragraphs of the Minister's Statement of Reasons which appear under the heading "Character Test". 183 Its relevance for the present case is for the guidance it gives as to the proper approach of statutory construction of a composite phrase. The High Court (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ) said at [66]: The primary judge considered "craftsmanship" and "aesthetic appeal" as distinct and consecutive questions, before going on and "considering both aspects together". This was an error in the construction and application of the Copyright Act ... 184 In this case, in my opinion, the importance of context cannot be overestimated. 185 The "association test" is one of four criteria by which a person does not pass the character test. It is relevant that the other three are (a) if the person has a substantial criminal record; (c) if, having regard to either or both of the person's past and present criminal conduct, or the person's past and present general conduct, the person is not of good character; or (d) the presence of the person in Australia would involve a significant risk that the person would engage in criminal conduct or act in the other reprehensible ways specified in s 501(6)(d)(ii)-(v). 186 Each of (a), (c) and (d) requires the decision maker to look at the person (ie, the visa holder); each of them requires an assessment of qualities personal to them, which qualities, parliament has said, determine that that person fails the character test. 187 In that context, it would be striking if the criterion in (b), which this case is concerned, could be met by an or any association with a person, group or organisation reasonably suspected of having been or is involved in criminal conduct. Such an association could be a completely innocent, and involve not the slightest reflection on that person's character. The association could be of the most transient kind, could be not only innocent but historically ancient. 188 Having regard to the context, it seems to me impossible to conclude that Parliament would have intended that a person fail the character test where relationship of a visa holder with a person, group or organisation was utterly remote from the criminality that person, group or organisation.