Case: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 211 CLR 476
Outcome: followed
proceeding in this Court is by way of appeal from the AAT. By s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act "), an appeal lies to this Court from the AAT but the appeal is restricted to a question of law. A question whether the AAT has denied procedural fairness to a party to a proceeding before it is a question of law for this purpose. See Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 (2003) 131 FCR 28 at [3] - [8] per Gray ACJ and North J. Ordinarily, the AAT's decision would be immune from challenge in this Court, because of s 474 of the Migration Act . It would fall squarely within the definition of "privative clause decision" in s 474(2). Section 44 of the AAT Act would also not apply to it, because of s 483 of the Migration Act , which provides that s 44 of the AAT Act does not apply to a "privative clause decision". The judgment of the High Court of Australia in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 211 CLR 476 makes clear, however, that the reference to a "decision" in the definition of "privative clause decision" is a reference to a decision that is not invalidated by reason of jurisdictional error. It follows that, if the applicant in the present case can establish jurisdictional error on the part of the AAT, he is entitled to appeal to this Court. Denial of procedural fairness on the part of the decision-maker is jurisdictional error for this purpose, as Plaintiff S157 itself demonstrates. If the applicant in the present case can establish such a denial on the part of the AAT, he will succeed in establishing both error of law by the AAT and an entitlement to have the AAT's decision set aside, despite s 474 of the Migration Act . Section 501 of the Migration Act provides relevantly as follows: (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. ... (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)); ... (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; or (d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more In relation to the exercise of the discretion to cancel a visa, when a non-citizen does not pass the character test as defined in s 501(6) of the Migration Act , Direction No 21 provides relevantly as follows: Weight of considerations 2.2 The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraphs 2.3 - 2.16 and other considerations are set out at paragraphs 2.17 - 2.24. Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations. PRIMARY CONSIDERATIONS 2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations: (a) the protection of the Australian community, and members of the community; (b) the expectations of the Australian community; and (c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children. Protection of the Australian Community ... 2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include: (a) the seriousness and nature of the conduct; (b) the likelihood that the conduct may be repeated (including any risk of recidivism); and (c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence). ... 2.10 It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. In particular, the following factors will be relevant to the assessment: (a) a non-citizen commits a further offence after having been warned previously about the risk of refusal or cancellation; (b) a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the non-citizen has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed; and (c) the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.