FEDERAL COURT OF AUSTRALIA
NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39
| IN THE FEDERAL COURT OF AUSTRALIA | |
| Applicant | |
| AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent |
| DATE OF ORDER: | |
| WHERE MADE: |
THE COURT ORDERS THAT:
1. A writ of certiorari issue, quashing the 23 July 2013 decision of the Minister for Immigration, Multicultural Affairs and Citizenship to refuse to grant the applicant a protection (class XA) visa under s 501(1) of the Migration Act 1958 (Cth) (“decision”).
2. A writ of prohibition issue, prohibiting the respondent and his delegates, servants and agents from acting upon or giving effect to the decision.
3. The respondent pay the applicant’s costs, as taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
| IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 191 of 2014 |
| BETWEEN: | NBNC Applicant |
| AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent |
| JUDGES: | ALLSOP CJ, BUCHANAN J and KATZMANN J |
| DATE OF ORDER: | 9 april 2014 |
| WHERE MADE: | SYDNEY |
THE COURT ORDERS THAT:
1. A writ of certiorari issue, quashing the 21 June 2013 decision of the Minister for Immigration, Multicultural Affairs and Citizenship to refuse to grant the applicant a protection (class XA) visa under s 501(1) of the Migration Act 1958 (Cth) (“decision”).
2. A writ of prohibition issue, prohibiting the respondent and his delegates, servants and agents from acting upon or giving effect to the decision.
3. The respondent pay the applicant’s costs, as taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
| IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 192 of 2014 |
| BETWEEN: | NBND Applicant |
| AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent |
| JUDGES: | ALLSOP CJ, BUCHANAN J and KATZMANN J |
| DATE OF ORDER: | 9 april 2014 |
| WHERE MADE: | SYDNEY |
THE COURT ORDERS THAT:
1. A writ of certiorari issue, quashing the 25 June 2013 decision of the Minister for Immigration, Multicultural Affairs and Citizenship to refuse to grant the applicant a protection (class XA) visa under s 501(1) of the Migration Act 1958 (Cth) (“decision”).
2. A writ of prohibition issue, prohibiting the respondent and his delegates, servants and agents from acting upon or giving effect to the decision.
3. The respondent pay the applicant’s costs, as taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
| IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 193 of 2014 |
| BETWEEN: | NBNE Applicant |
| AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent |
| JUDGES: | ALLSOP CJ, BUCHANAN J and KATZMANN J |
| DATE OF ORDER: | 9 april 2014 |
| WHERE MADE: | SYDNEY |
THE COURT ORDERS THAT:
1. A writ of certiorari issue, quashing the 25 June 2013 decision of the Minister for Immigration, Multicultural Affairs and Citizenship to refuse to grant the applicant a protection (class XA) visa under s 501(1) of the Migration Act 1958 (Cth) (“decision”).
2. A writ of prohibition issue, prohibiting the respondent and his delegates, servants and agents from acting upon or giving effect to the decision.
3. The respondent pay the applicant’s costs, as taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
| IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 194 of 2014 |
| BETWEEN: | NBNF Applicant |
| AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent |
| JUDGES: | |
| DATE OF ORDER: | 9 april 2014 |
| WHERE MADE: | SYDNEY |
THE COURT ORDERS THAT:
1. A writ of certiorari issue, quashing the 25 June 2013 decision of the Minister for Immigration, Multicultural Affairs and Citizenship to refuse to grant the applicant a protection (class XA) visa under s 501(1) of the Migration Act 1958 (Cth) (“decision”).
2. A writ of prohibition issue, prohibiting the respondent and his delegates, servants and agents from acting upon or giving effect to the decision.
3. The respondent pay the applicant’s costs, as taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
| NEW SOUTH WALES DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 15 of 2014 |
| BETWEEN: | NBNB Applicant |
| AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent |
| JUDGES: | ALLSOP CJ, BUCHANAN AND KATZMANN JJ |
| DATE: | 9 april 2014 |
| PLACE: | SYDNEY |
| IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 191 of 2014 |
| BETWEEN: | NBNC Applicant |
| AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent |
| JUDGES: | ALLSOP CJ, BUCHANAN AND KATZMANN JJ |
| DATE: | 9 april 2014 |
| PLACE: | SYDNEY |
| IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 192 of 2014 |
| BETWEEN: | NBND Applicant |
| AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent |
| JUDGES: | ALLSOP CJ, BUCHANAN AND KATZMANN JJ |
| DATE: | 9 april 2014 |
| PLACE: | SYDNEY |
| IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 193 of 2014 |
| BETWEEN: | NBNE Applicant |
| AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent |
| JUDGES: | ALLSOP CJ, BUCHANAN AND KATZMANN JJ |
| DATE: | 9 april 2014 |
| PLACE: | SYDNEY |
| IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 194 of 2014 |
| BETWEEN: | NBNF Applicant |
| AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent |
| JUDGES: | ALLSOP CJ, BUCHANAN AND KATZMANN JJ |
| DATE: | 9 april 2014 |
| PLACE: | SYDNEY |
REASONS FOR JUDGMENT
ALLSOP CJ & KATZMANN J:
1 We have had the advantage of reading the reasons for judgment of Buchanan J to be published. We agree with the orders he proposes. The setting out of the background and issues by his Honour, which we gratefully adopt, permits us to state our reasons shortly.
2 As Buchanan J notes, the reasons of the Minister in these five cases have a degree of similarity to the reasons of the Minister considered by the Court in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38. As in NBMZ, in the five decisions here, the Minister failed to take into account the mandatory consideration of the legal consequences of the decision being made in the context of Australia’s obligation of non-refoulement: indefinite detention. We refer to and adopt what we said in NBMZ on this issue. For that reason alone, each decision here should be set aside.
3 We agree with Buchanan J (and with his reasons) that each applicant was denied procedural fairness. None was told about the central place of deterrence as an issue or likely issue in the decision to be made. Given what each was provided with by way of material as to what he was invited to address, each was, to a degree, led away from, or at least left uninformed about, the likely central consideration of deterrence. In one sense it can be said that each was (no doubt unintentionally) misled. In all the circumstances referred to by Buchanan J, we think that it was unfair on each applicant for the Minister to make the decision for the reasons given without giving each an opportunity to be heard on the question of deterrence.
4 The Minister submitted that even if he was obliged to tell the applicants that he would or might consider the question of deterrence, the applicants had not identified what they would have said had they been given the opportunity to comment on the subject, and so the ground must fail. In support of this submission the Minister relied on Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at 13–14 [37], 34–35 [106] and 48 [149]. Care needs to be taken not to extrapolate what was said in Lam beyond its proper limits, especially in the light of the particular facts of Lam. There is no principle of law to be derived from Lam that in all cases an evidential onus is placed on an applicant to prove what she or he would have submitted to a decision-maker if she or he had known of a consideration to be taken into account; or to prove that such material would have made a difference. At the root of any conclusion about whether natural justice or procedural fairness has been afforded is an assessment of fairness: Kioa v West [1985] HCA 81; 159 CLR 550 at 583 (Mason J), Wiseman v Borneman [1971] AC 297 at 308 (Lord Reid), 309 (Lord Morris of Borth-y-Gest) and 320 (Lord Wilberforce), Bushell v Secretary of State for the Environment [1981] AC 75 at 95 (Lord Diplock), 110 (Viscount Dilhorne), 121 (Lord Lane) and 119 (Lord Fraser of Tullybelton relevantly agreeing with Lord Diplock and Lord Lane); or as Gleeson CJ said in Lam at [37], the assessment is one of “practical injustice”. See also M. Aronson and M. Groves Judicial Review of Administrative Action (5th Ed Lawbook Co) at 405–408 [7.50].
5 How unfairness is revealed or demonstrated in any particular case will depend on the circumstances. Generally speaking, if a person is not informed of an important aspect of a case he or she has to meet, subject to considerations of the kind discussed in Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141, namely whether the denial of procedural fairness could not possibly have affected the outcome, unfairness and practical injustice will have been demonstrated: Tuncok v Minister [2003] FCA 1069 at [34] (per Hely J) approved in Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 298; 133 FCR 541 at 557 [91]. Here, there is no reason to think that meaningful submissions could not have been put about deterrence, perhaps raising the very kinds of issues to which we referred in NBMZ at [28]–[31]. Further, there is no basis to think that any such submissions could not have been of significance to the Minister’s decision, especially in the case of NBNB (in particular by reason of the matter referred to below).
6 In these circumstances, and subject to one matter, it is unnecessary to deal any further with the issues of the kind we discussed in NBMZ at [20]–[32]. These issues can be seen to arise in these five cases as well. The one matter upon which it is appropriate to comment is the potential relevance of the circumstances of the applicant in question. Here, the facts of the offending of NBNB, on the one hand, and NBNC, NBND, NBNE and NBNF, on the other hand, throw that issue into some relief. Mental health issues aside, it might be thought that a different approach may attend the weighing up of the circumstances of an applicant who has spat on a guard, perhaps out of frustration and anger, compared to the assessment of four men, who had, in concert, and with others, engaged in what was, in effect, an organised riot.
7 We agree with Buchanan J for the reasons he gives that the Minister committed no jurisdictional error in failing to obtain the medical records of the applicants.
8 We also agree with Buchanan J that s 501(6)(aa) of the Migration Act 1958 (Cth) is not constitutionally invalid. We agree with Buchanan J’s reasons in this regard, and would add the following. Section 51(xix) of the Constitution is a power that permits Parliament to prescribe the conditions under which aliens may enter or remain in this country: Robtelmes v Brenan [1906] HCA 58; 4 CLR 395 at 404, 415, 418–419; Ex parte Walsh and Johnson; In re Yates [1925] HCA 53; 37 CLR 36 at 117 and 132–133; Koon Wing Lau v Calwell [1949] HCA 65; 80 CLR 533 at 555 and 558; Pochi v Minister for Immigration and Ethnic Affairs (Macphee) [1982] HCA 60; 151 CLR 101 at 106. The plenary breadth of the power can be seen especially in Robtelmes at 415, Ex parte Walsh and Johnson at 132–133, Koon Wing Lau at 558 and Pochi at 106. Section 501(6)(aa) sets a condition that enlivens a discretion about visas. It is plainly within the power of the Parliament to nominate such a condition.
| I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop and Justice Katzmann. |
Associate:
| IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 15 of 2014 |
| BETWEEN: | NBNB Applicant |
| AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent |
| JUDGES: | ALLSOP CJ, BUCHANAN AND KATZMANN JJ |
| DATE: | 9 april 2014 |
| PLACE: | SYDNEY |
| IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 191 of 2014 |
| BETWEEN: | NBNC Applicant |
| AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent |
| JUDGES: | ALLSOP CJ, BUCHANAN AND KATZMANN JJ |
| DATE: | 9 april 2014 |
| PLACE: | SYDNEY |
| IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 192 of 2014 |
| BETWEEN: | NBND Applicant |
| AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent |
| JUDGES: | ALLSOP CJ, BUCHANAN AND KATZMANN JJ |
| DATE: | 9 april 2014 |
| PLACE: | SYDNEY |
| IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 193 of 2014 |
| BETWEEN: | NBNE Applicant |
| AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent |
| JUDGES: | ALLSOP CJ, BUCHANAN AND KATZMANN JJ |
| DATE: | 9 april 2014 |
| PLACE: | SYDNEY |
| IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 194 of 2014 |
| BETWEEN: | NBNF Applicant |
| AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent |
| JUDGES: | ALLSOP CJ, BUCHANAN AND KATZMANN JJ |
| DATE: | 9 april 2014 |
| PLACE: | SYDNEY |
REASONS FOR JUDGMENT
BUCHANAN J:
Introduction
9 These five matters raise, in some respects, similar issues to ones dealt with in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38 (“NBMZ”).
10 In late 2011/early 2012, each of the applicants was being held in immigration detention at the Northern Immigration Detention Centre (“the Detention Centre”) in Darwin. Each applicant had arrived by boat at Christmas Island and each had been transferred to the Detention Centre.
11 On 8 November 2011 (in the case of NBNC, NBND, NBNE and NBNF) and 10 February 2012 (in the case of NBNB) the applicants were involved in incidents at the Detention Centre. NBNB spat twice on a Serco client service officer. The other applicants acted jointly to damage or destroy some Commonwealth property.
12 Each of the applicants was charged with committing criminal offences. Each pleaded guilty. Each was convicted and placed on a good behaviour bond as a condition of release. The four applicants who acted jointly were ordered to pay for the damage they caused.
13 Each of the applicants has been found, independently of those events, to be a refugee in respect of whom Australia owes protection obligations under the Refugees Convention. Nevertheless, in circumstances to be explained in greater detail, each was refused a protection visa in the personal exercise of a discretion given to the Minister by s 501 of the Migration Act 1958 (Cth) (“the Act”). The discretion to refuse a visa arose because each of the applicants did not pass the “character test” stated by s 501 of the Act. They did not pass the character test because of s 501(6)(aa).
14 Section 501(6)(aa) of the Act was inserted on 26 April 2011. It provides:
501 Refusal or cancellation of visa on character grounds
…
Character test
(6) For the purposes of this section, a person does not pass the character test if:
…
(aa) the person has been convicted of an offence that was committed:
(i) while the person was in immigration detention; or
(ii) during an escape by the person from immigration detention; or
(iii) after the person escaped from immigration detention but before the person was taken into immigration detention again; or …
15 After refusal of their visa applications, each of the applicants applied to the High Court for prerogative relief against the Minister. Each application for relief was remitted to this Court. The Chief Justice directed that the applications for relief be heard by a Full Court. The applications for relief have been heard together.
16 I have come to the same view in the present cases as I did in NBMZ, namely, that the Minister made jurisdictional errors when he refused a protection visa to each applicant, and that his decisions should be set aside.
17 I do not propose, in most respects, to repeat the analysis I made in NBMZ. My reasons for judgment in that case should be regarded as informing my conclusions in the present case.
18 It will be necessary, however, to outline the factual circumstances of each of the present applicants and set out the reasons given by the Minister for refusing the application for a protection visa which each had been permitted, by personal decision of a previous Minister, to make.
19 The arguments on behalf of the applicants in the present case extended beyond those in NBMZ in some respects. For example, in the present case it was submitted that s 501(6)(aa) of the Act, under which the Minister refused each visa, was invalid.
20 It was also argued that the Minister had denied the applicants natural justice, by not bringing to their attention that he might refuse their visa applications by reference to a belief that to do so would act as a disincentive to others in detention centres from criminal conduct.
21 Those additional arguments will be addressed after the background has been more fully exposed.
Background
NBNB
22 NBNB arrived by boat at Christmas Island on 2 December 2010. On 7 October 2011, he was moved to the Detention Centre at Darwin.
23 On 19 January 2012 an Independent Merits Reviewer recommended that NBNB be accepted as a person to whom Australia owed protection obligations. She said, “I am satisfied that the claimant faces a real chance of being physically harmed and probably killed” if returned to Iraq and that Iraq was “unable to protect him”. She said, “I am satisfied that there is a real chance the claimant would face persecutory treatment anywhere he lived in Iraq”.
24 On 10 February 2012, NBNB was involved in an incident at the Detention Centre. The incident led to two charges being laid against him for “conduct to cause harm to Commonwealth official”. The conduct was that he spat twice on a Serco client service officer.
25 On 2 July 2012, NBNB was transferred to the Villawood Immigration Detention Centre in New South Wales. On 2 April 2014, the legal representatives of NBNB brought an urgent interlocutory application to restrain the Minister from transferring NBNB from Villawood Immigration Detention Centre to the Curtin Immigration Detention Centre in Western Australia the following day. The application was dismissed and, presumably, NBNB was later moved to the Curtin Immigration Detention Centre.
26 The charges against NBNB were dealt with at Darwin on 18 September 2012. NBNB pleaded guilty. He was convicted on each count. He was released upon giving security by recognizance of $500 on the first offence and $1000 on the second offence, to be of good behaviour for 12 months. That period has now expired.
27 Because NBNB was an “offshore entry person”, even though he was accepted to be a person to whom Australia owed protection obligations he was not permitted to apply for a visa unless granted permission by the Minister to do so. On 12 December 2012 the Minister (then the Honourable Chris Bowen MP) granted that permission. The Minister had before him a ministerial submission which pointed out that NBNB’s convictions had the consequence that he did not pass the character test. The submission to the Minister asking for a decision whether NBNB should be permitted to apply for a protection visa also recorded the following:
Conduct in Detention
…
16. Mr [NBNB’s] case manager and the International Health and Medical Services (IHMS) have indicated their concern that Mr [NBNB’s] mental health may further deteriorate if his detention in a restrictive environment is prolonged.
…
Client service implications
21. A quick resolution of Mr [NBNB’s] case would be desirable as his mental health has been deteriorating.
28 On 8 January 2013, pursuant to the decision that he may do so, NBNB lodged an application for a protection visa.
29 However, despite being given permission by the Minister to apply for a protection visa in the knowledge that he did not pass the character test, on 18 February 2013 NBNB was advised that consideration was being given to refusing his visa application because he did not pass the character test. He was sent a copy of Direction No. 55 – Visa refusal and cancellation under s501 which had been made under s 499 of the Act by the Minister on 25 July 2012, although he was advised that “the Minister is not required to follow the Direction”. I shall set out the terms of Direction No. 55 below.
30 Submissions were provided by or on behalf of NBNB to the Minister on 26 February 2013 and 2 April 2013. On 10 July 2013 a submission was made to the Minister by his Department seeking his decision on whether NBNB should be granted a protection visa. On 23 July 2013 the Minister decided that NBNB should be refused a protection visa. The Minister’s decision was in the following terms:
STATEMENT OF REASONS FOR REFUSAL OF A VISA
UNDER SUBSECTION 501(1) OF THE MIGRATION ACT 1958
DECISION BY THE MINISTER OF IMMIGRATION, MULTICULTURAL
AFFAIRS AND CITIZENSHIP
Mr [NBNB] [dob]
This statement relates to the application for the grant of a Protection (Class XA) visa to Mr [NBNB]. Any other visa application by Mr [NBNB] which is currently undecided will be refused by operation of law, pursuant to subsection 501F(2) of the Act and any other visa held by Mr [NBNB] at the time of the decision will be cancelled by operation of law pursuant to subsection 501F(3) of the Act.
CHARACTER TEST
l. The character test is defined in subsection 501(6) to include:
For the purposes of this section, a person does not pass the character test if:
…
(aa) the person has been convicted of an offence that was committed:
(i) while the person was in immigration detention;
…
2. On 18 September 2012, Mr [NBNB] was convicted in the Darwin Court of Summary Jurisdiction in the Northern Territory of the following offences and sentenced as shown:
• Conduct to Cause Harm to Commonwealth Official - directed to enter into a $500 recognizance security to be of good behaviour for 12 months.
• Conduct to Cause Harm to Commonwealth Official - directed to enter into a $1000 security recognizance to be of good behaviour for 12 months.
3. The offences were committed on 10 February 2012 whilst Mr [NBNB] was being held at Northern Immigration Detention Centre in Darwin.
4. Mr [NBNB] has been convicted of offences that were committed while he was in immigration detention. For the purpose of s501(1) of the Act, Mr [NBNB] does not pass the character test by virtue of s501(6)(aa)(i) and he has not satisfied me that he passes the character test.
DISCRETION
5. Having found that Mr [NBNB] does not pass the character test and having assessed the information set out in the Issues Paper and attachments, I considered whether to exercise my discretion to refuse to grant Mr [NBNB’s] visa.
RELEVANT CONSIDERATIONS
Criminal Conduct
6. Mr [NBNB] has been·convicted of two counts of the criminal offence of Conduct to Cause Harm to Commonwealth Official. His offending involved him twice spitting on a Serco Client Service Officer.
7. I find that Mr [NBNB’s] crimes are categorised as crimes against the person. I find that assaults, in this case spitting, are serious.
8. The Stipendiary Magistrate remarked to Mr [NBNB]: “[t]he offence you have committed is a serious offence .... it is a form of assault which is very harmful to the people it is perpetrated against”. I endorse the Stipendiary Magistrate’s view that Mr [NBNB’s] offending is to be viewed seriously.
9. I find that crimes committed against government officials in the performance of their duties are serious. The Stipendiary Magistrate Smith commented “The gentleman you spat upon was simply doing his job and certainly not unreasonable for him to ask you to stop kicking the gate. He is a public official, he is entitled to go to work and not be subjected to this kind of conduct”. I adopt the Magistrates [sic] view that a public official is entitled to carry out their duties without being subject to abusive behaviour.
10. Mr [NBNB’s] criminal conduct is of a type that will not be tolerated while people are in immigration detention. I am of the view that crimes committed in immigration detention, such as the ones committed by Mr [NBNB], are serious offences in themselves and are the type of offences which the new limb of the character test was specifically intended to discourage.
11. I find Mr [NBNB’s] disposition, involving convictions and a direction to enter into a security recognizance to be of good behaviour for 12 months in the amounts of $500 and $1000 respectively is reflective of the seriousness of his offending.
12. Stipendiary Magistrate Smith noted that the reason for Mr [NBNB’s] behaviour was “unknown” and not explored at trial. Mr [NBNB’s] migration agent submitted on his behalf that Mr [NBNB] offended in the context of a momentary loss of control, related to his psychological problems. He submitted that Mr [NBNB] was suffering from major depression relating to his lengthy detention, grief and stress. Mr [NBNB’s] mental health issues were explored at trial and accepted, though not explicitly found to be a causal factor.
13. Mr [NBNB’s] criminal history record reflects no other history of offending in Australia.
14. I also note the Stipendiary Magistrate’s comment: “[i]mportantly, you come before me as a person with no prior convictions. In general terms you have a good work record and the circumstances of your life are completely different to those who one normally sees appearing in the court for spitting as drunken thugs”.
15. I have had reference to Mr [NBNB’s] actions showing he takes full responsibility by pleading guilty at the earliest opportunity. I have taken into consideration his agent’s statement that Mr [NBNB] is, in fact, a person of good character, without any substantial criminal record, who poses no risk of engaging in criminal conduct or causing harm to the Australian community.
International Obligations
Best interests of Minor Children in Australia
16. The evidence available to me does not indicate that there are any children whose best interests may be affected by the refusal of Mr [NBNB’s] visa application and as such this consideration is not relevant to my decision.
Non-refoulement obligations
17. An Independent Protection Assessment dated 19 January 2012 determined that Mr [NBNB] is a person to whom Australia has protection obligations under the Refugees Convention and therefore he meets the criterion for a Protection visa set out in s36(2) of the Act.
18. I accept that Mr [NBNB] has a well-founded fear of being persecuted in the foreseeable future if he was returned to Iraq and that Australia has a non-refoulement obligation under the Refugees Convention to Mr [NBNB] in respect of Iraq. I also note the finding that there is no evidence to suggest that Mr [NBNB] has the right to enter and reside in any safe third country and that relocation within Iraq is not a viable option.
19. I note that a decision to refuse Mr [NBNB] a Protection visa on character grounds is not, in itself, a decision to remove Mr [NBNB] from Australia, nor does it necessarily lead to such action.
Other Considerations
20. The evidence available to me does not indicate that Mr [NBNB] has any links to Australia.
21. I accept the medical evidence that Mr [NBNB] has exhibited symptoms of depression and insomnia whilst in immigration detention and was found with a noose five months prior to his offending.
22. I have given serious consideration to the information concerning Mr [NBNB’s] mental health issues.
CONCLUSION
23. I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act 1958, and (2) all other evidence available to me, including evidence provided by, or on behalf of Mr [NBNB].
24. In reaching my decision to refuse Mr [NBNB] a Protection visa, I have taken the view that engaging in criminal behaviour while in immigration detention is serious and that the Australian community has an expectation that people who seek to remain in Australia will respect Australia’s laws and legal authority, and be of good character. I considered that the consequences of such behaviour in particular cases should also provide a disincentive to others who may be at risk of engaging in criminal behaviour while in immigration detention.
25. I have given consideration to the fact that Mr [NBNB] is also a man who has serious mental health issues.
26. In reaching my decision, I consider that, notwithstanding that Mr [NBNB] is a person to whom Australia has protection obligations, his behaviour demonstrates a fundamental disrespect for Australian laws, standards and authorities and, consistent with the introduction of the new limb of the character test in s501(6)(aa), that behaviour should attract consequences under the Migration Act.
27. Having given full consideration to all of these matters, I have decided to exercise my discretion to refuse to grant Mr [NBNB’s] application for a Protection (Class XA) visa, under s501(1), noting that a decision to refuse a visa application is not, of itself, incompatible with Australia meeting its obligations in his particular case.
31 There are features of the decision which raise the same questions which I addressed in NBMZ (e.g. paragraph 19). I do not propose to repeat that analysis, which applies also in the present case (i.e. all the present cases).
32 In the particular context of the present case, paragraphs 15, 21-22 and 24-26 should also be noted. The Minister appears to accept that NBNB had serious mental health issues at the time the offences were committed and at the time of his decision. The information before him suggested that those mental health issues were the result of, or were exacerbated by, his detention.
33 The Minister was also, it is clear, influenced by a desire to “send a message” to other people in detention centres.
34 I shall discuss the influence in all of the present cases of the use of a notion of general deterrence in due course. In each case the use of that notion occurred in circumstances where the applicant in question was accepted to be (and have been) in a fragile psychological state and to pose no threat to the Australian community if granted a visa.
NBNC
35 NBNC was born in Afghanistan. He entered Australia at Christmas Island on 25 March 2011 and was transferred that day to the Detention Centre in Darwin.
36 On 30 March 2012, the Independent Protection Assessor recommended that NBNC be recognised as a person to whom Australia has protection obligations because, if returned to Afghanistan now or in the reasonably foreseeable future, he would face a real chance of persecution by the Taliban.
37 Before this recommendation was made, on 8 November 2011, NBNC (together with NBND, NBNE and NBNF) was involved in an incident at the Detention Centre in which damage was caused to property in the centre. On 23 November 2012, NBNC (with the others) was convicted in the Darwin Court of Summary Jurisdiction of one count of destroying or damaging Commonwealth property and one count of the joint commission of an offence. He pleaded guilty, was convicted, was placed on a recognizance of $1000 to be of good behaviour for 18 months and ordered to pay reparation of $3181.97 which represented his contribution to the damage. Those orders were imposed on the co-offenders in the same terms and at the same time.
38 Notwithstanding his conviction (with the result that he did not pass the character test), on 18 January 2013 the Minister for Immigration and Citizenship (then the Honourable Chris Bowen MP) exercised his power under s 46A of the Act to allow NBNC to lodge an application for a protection visa and, on 4 February 2013, NBNC lodged such an application. Ten days later, on 14 February 2013, NBNC was issued with a notice that the Minister was considering refusing his visa application because he did not pass the character test.
39 On 25 April 2013 the Minister for Immigration and Citizenship (then the Honourable Brendan O’Connor MP) approved NBNC being moved to community detention, where he remains.
40 On 21 June 2013 the Minister for Immigration and Citizenship (the Honourable Brendan O’Connor MP) refused to grant NBNC a protection visa.
41 The reasons given by the Minister were as follows:
STATEMENT OF REASONS FOR REFUSAL OF A VISA UNDER SUBSECTION 501(1) OF THE MIGRATION ACT 1958 - DECISION BY THE MINISTER
Mr [NBNC] [dob]
This statement relates to the application for the grant of a Protection (Class XA) visa to Mr [NBNC]. Any other visa application by Mr [NBNC] which is currently undecided will be refused by operation of law, pursuant to subsection 501F(2) of the Act and any other visa held by Mr [NBNC] at the time of the decision will be cancelled by operation of law pursuant to subsection 501F(3) of the Act.
CHARACTER TEST
l. The character test is defined in subsection 501(6) to include:
For the purposes of this section, a person does not pass the character test if:
…
(aa) the person has been convicted of an offence that was committed:
(i) while the person was in immigration detention;
…
2. On 23 November 2012, Mr [NBNC] was convicted in the Darwin Court of Summary Jurisdiction in the Northern Territory of the following offences and sentenced as shown:
• destroying and damaging Commonwealth property - directed to enter into an 18 month good behaviour bond on self-recognisance in the amount of $1000.
• aid/ abet/ counsel/ procure commission of offence by another - directed to enter into an 18 month good behaviour bond on self-recognisance in the amount of $1000.
3. The offences were committed on 8 November 2011 whilst Mr [NBNC] was being held at Northern Immigration Detention Centre in Darwin.
4. Mr [NBNC] has been convicted of offences that were committed while he was in immigration detention. For the purpose of s501(1) of the Act, Mr [NBNC] does not pass the character test by virtue of s501(6)(aa)(i) and he has not satisfied me that he passes the character test.
DISCRETION
5. Having found that Mr [NBNC] does not pass the character test and having assessed the information set out in the Issues Paper and attachments, I considered whether to exercise my discretion to refuse to grant Mr [NBNC’s] visa.
RELEVANT CONSIDERATIONS
Criminal Conduct
6. Mr [NBNC] has been·convicted of the criminal offences of destroying and damaging Commonwealth property and aid/ abet/ counsel/ procure commission of offence by another. This offending involved violent acts which led to the destruction and damage of property and I consider this to be very serious.
7. Mr [NBNC’s] criminal conduct is of a type that will not be tolerated while people are in immigration detention. I am of the view that crimes committed in immigration detention, such as the ones committed by Mr [NBNC], are serious.
8. The sentencing Magistrate remarked that the riot that Mr [NBNC] participated in ‘disturbed and distressed other detainees’ and as a result the ‘loss of the facilities would have been felt for a lot longer by all detainees’. The Magistrate also commented ‘The offence is a serious one...’ noting the elements of premeditation and organisation. I adopt the Magistrate’s views that Mr [NBNC’s] offence is to be viewed seriously given the secure environment and possible endangerment of life, as well as the disruption and loss experienced by the other detainees.
9. I have also noted the damage and destruction of Commonwealth property that occurred as a result of Mr [NBNC’s] offending. I have considered Mr [NBNC’s] agent’s submission in relation to his role in the riot, in which he ‘picked up and threw a computer monitor onto the floor. He kicked and threw four plastic chairs, and threw a fifth plastic chair into a wall mounted television’.
10. I find Mr [NBNC’s] disposition for the above offending, involving convictions and directions to enter into an 18 month good behaviour bond on self-recognisance in the amount of $1000 and an order to pay restitution in the amount of $3,181.87 [sic: $3,181.97] is reflective of the seriousness of his offending.
11. Mr [NBNC’s] criminal history record reflects no other offending in Australia.
12. I also note the Magistrate’s comment ‘all...are men of good character. There is nothing alleged against them before this incident or, indeed, afterwards’.
13. The sentencing Magistrate noted ‘it is unknown as to what sparked the offence’. I note that Mr [NBNC’s] migration agent submitted on his behalf that ‘the immense pressure Mr [NBNC] has been under for a prolonged period and his poor mental health impacted on his behaviour and subsequent involvement in the incident of 8 November 2011’.
14. I have considered Mr [NBNC’s] remorse, and note his action of pleading guilty at the earliest opportunity shows he takes full responsibility. I have taken into consideration his agent’s statement that there is no risk of the harm reoccurring.
International Obligations
Best interests of Minor Children in Australia
15. The evidence available to me does not indicate that there are any children whose best interests may be affected by the refusal of Mr [NBNC’s] visa application and as such this consideration is not relevant to my decision.
Non-refoulement obligations
16. An Independent Protection Assessment dated 30 March 2012 determined that Mr [NBNC] is a person to whom Australia has protection obligations under the Refugees Convention and therefore he meets the criterion for a Protection visa set out in s36(2) of the Act.
17. I accept that Mr [NBNC] has a well-founded fear of being persecuted in the foreseeable future if he was returned to Afghanistan and that Australia has a non-refoulement obligation under the Refugees Convention to Mr [NBNC] in respect of Afghanistan. I also note the finding that there is no evidence to suggest that Mr [NBNC] has the right to enter and reside in any safe third country and that relocation within Afghanistan is not a viable option.
18. I note that a decision to refuse Mr [NBNC] a Protection visa on character grounds is not, in itself, a decision to remove Mr [NBNC] from Australia, nor does it necessarily lead to such action.
Other Considerations
19. The evidence available to me states that Mr [NBNC’s] immediate family consisting of his mother, two younger sisters and four younger brothers, all reside in Afghanistan.
20. I accept the medical evidence that Mr [NBNC] has exhibited symptoms of stress, depression and insomnia whilst in immigration detention and has self-harmed.
21. I have given serious consideration to the evidence informing of Mr [NBNC’s] mental and physical health issues, inclusive of a gastric condition for which he is receiving appropriate medical attention.
22. I have considered the advice that Mr [NBNC], since being placed in community detention, has not had any incidents, that he has commenced English language classes and attended an activities workshop.
23. The evidence available to me does not indicate that Mr [NBNC] has any other links to Australia.
CONCLUSION
24. I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act 1958, and (2) all other evidence available to me, including evidence provided by, or on behalf of Mr [NBNC].
25. In reaching my decision to refuse Mr [NBNC] a Protection visa, I have taken the view that engaging in criminal behaviour while in immigration detention is serious and that the Australian community has an expectation that people who seek to remain in Australia will respect Australia’s laws and legal authority, and be of good character. I considered that the consequences of such behaviour in particular cases should also provide a disincentive to others who may be at risk of engaging in criminal behaviour while in immigration detention.
26. I have given consideration to the fact that Mr [NBNC] is also a man who has serious mental health issues, and that he is now participating in the Australian community in a gainful manner.
27. In reaching my decision, I consider that, notwithstanding that Mr [NBNC] is a person to whom Australia has protection obligations, his behaviour demonstrates a fundamental disrespect for Australian laws, standards and authorities and, consistent with the introduction of the new limb of the character test in s501(6)(aa), that behaviour should attract consequences under the Migration Act.
28. Having given full consideration to all of these matters, I have decided to exercise my discretion to refuse to grant Mr [NBNC’s] application for a Protection (Class XA) visa, under s501(1), noting that a decision to refuse a visa application is not, of itself, incompatible with Australia meeting its obligations in his particular case.
42 Paragraph 18 raises an issue dealt with in NBMZ. The decision as a whole raises issues considered in that case.
43 Paragraphs 11-14, 20 and 25-27 raise the same further issues which I mentioned in respect of NBNB.
NBND
44 NBND was also born in Afghanistan. He also arrived at Christmas Island on 25 March 2011 and was transferred the same day to the Detention Centre in Darwin.
45 On 13 February 2012 an Independent Protection Assessor found that NBND should be recognised as a person to whom Australia had protection obligations and that if returned to Afghanistan in the reasonably foreseeable future he would be at risk of serious harm from the Taliban.
46 In the meantime, NBND, together with NBNC, NBNE and NBNF was involved in an incident at the Detention Centre on 8 November 2011. With the others, he was convicted in the Darwin Court of Summary Jurisdiction on 23 November 2012 on one count of destroying or damaging Commonwealth property and one count of the joint commission of an offence. Like the others, he pleaded guilty, was convicted and released on a $1000 recognizance to be of good behaviour for 18 months and ordered to pay reparation in the amount of $3181.97.
47 Also, like the others the Minister for Immigration and Citizenship (then the Honourable Chris Bowen MP) exercised a power under s 46A of the Act to allow NBND to lodge an application for a protection visa, and he did so on 4 February 2013. Nevertheless, on 12 February 2013, he was advised that the Minister was considering whether to refuse his visa application.
48 On 25 April 2013 the Minister for Immigration and Citizenship (then the Honourable Brendan O’Connor MP) approved NBND being moved to community detention, where he remains.
49 On 25 June 2013 the Minister for Immigration and Citizenship (the Honourable Brendan O’Connor MP) decided to refuse NBND a protection visa. The Minister’s reasons for decision are as follows:
STATEMENT OF REASONS FOR REFUSAL OF A VISA UNDER SUBSECTION 501(1) OF THE MIGRATION ACT 1958 - DECISION BY THE MINISTER
Mr [NBND] [dob]
This statement relates to the application for the grant of a Protection (Class XA) visa to Mr [NBND]. Any other visa application by Mr [NBND] which is currently undecided will be refused by operation of law, pursuant to subsection 501F(2) of the Act and any other visa held by Mr [NBND] at the time of the decision will be cancelled by operation of law pursuant to subsection 501F(3) of the Act.
CHARACTER TEST
l. The character test is defined in subsection 501(6) to include:
For the purposes of this section, a person does not pass the character test if:
…
(aa) the person has been convicted of an offence that was committed:
(i) while the person was in immigration detention;
…
2. On 23 November 2012, Mr [NBND] was convicted in the Darwin Court of Summary Jurisdiction in the Northern Territory of the following offences and sentenced as shown:
• destroying and damaging Commonwealth property - directed to enter into an 18 month good behaviour bond on self-recognisance in the amount of $1000.
• aid/ abet/ counsel/ procure commission of offence by another - directed to enter into an 18 month good behaviour bond on self-recognisance in the amount of $1000.
3. The offences were committed on 8 November 2011 whilst Mr [NBND] was being held at Northern Immigration Detention Centre in Darwin.
4. Mr [NBND] has been convicted of offences that were committed while he was in immigration detention. For the purpose of s501(1) of the Act, Mr [NBND] does not pass the character test by virtue of s501(6)(aa)(i) and he has not satisfied me that he passes the character test.
DISCRETION
5. Having found that Mr [NBND] does not pass the character test and having assessed the information set out in the Issues Paper and attachments, I considered whether to exercise my discretion to refuse to grant Mr [NBND’s] visa.
RELEVANT CONSIDERATIONS
Criminal Conduct
6. Mr [NBND] has been·convicted of the criminal offences of destroying and damaging Commonwealth property and aid/ abet/ counsel/ procure commission of offence by another. This offending involved violent acts which led to the destruction and damage of property and I consider this to be very serious.
7. Mr [NBND’s] criminal conduct is of a type that will not be tolerated while people are in immigration detention. I am of the view that crimes committed in immigration detention, such as the ones committed by Mr [NBND], are serious.
8. The sentencing Magistrate remarked that the riot that Mr [NBND] participated in ‘disturbed and distressed other detainees’ and as a result the ‘loss of the facilities would have been felt for a lot longer by all detainees’. The Magistrate also commented ‘The offence is a serious one...’ noting the elements of premeditation and organisation. I adopt the Magistrate’s views that Mr [NBND’s] offending is to be viewed seriously given the secure environment and possible endangerment of life, as well as the disruption and loss experienced by the other detainees.
9. I have also noted the damage and destruction of Commonwealth property that occurred as a result of Mr [NBND’s] offending. I have considered Mr [NBND’s] agent’s submission in relation to his role in the riot, in which he ‘picked up three plastic chairs and threw them in turn, into a television, table and a refrigerator’.
10. I find Mr [NBND’s] disposition for the above offending, involving convictions and directions to enter into an 18 month good behaviour bond on self-recognisance in the amount of $1000 and an order to pay restitution in the amount of $3,181.87 [sic: $3,181.97] is reflective of the seriousness of his offending.
11. Mr [NBND’s] criminal history record reflects no other offending in Australia.
12. I also note the Magistrate’s comment ‘all...are men of good character. There is nothing alleged against them before this incident or, indeed, afterwards’.
13. The sentencing Magistrate noted ‘it is unknown as to what sparked the offence’. I note that Mr [NBND’s] migration agent submitted on his behalf that ‘the pressures Mr [NBND] was under and his poor mental health impacted on his behaviour and subsequent involvement in the incident of 8 November 2011’, though the court did not explicitly find this.
14. I have considered Mr [NBND’s] remorse, and his actions showing he takes full responsibility by pleading guilty at the earliest opportunity. I have taken into consideration his agent’s statement that there is no risk of the harm recurring.
International Obligations
Best interests of Minor Children in Australia
15. The evidence available to me does not indicate that there are any children whose best interests may be affected by the refusal of Mr [NBND’s] visa application and as such this consideration is not relevant to my decision.
Non-refoulement obligations
16. An Independent Protection Assessment dated 13 February 2012 determined that Mr [NBND] is a person to whom Australia has protection obligations under the Refugees Convention and therefore he meets the criterion for a Protection visa set out in s36(2) of the Act.
17. I accept that Mr [NBND] has a well-founded fear of being persecuted in the foreseeable future if he was returned to Afghanistan and that Australia has a non-refoulement obligation under the Refugees Convention to Mr [NBND] in respect of Afghanistan. I also note the finding that there is no evidence to suggest that Mr [NBND] has the right to enter and reside in any safe third country and that relocation within Afghanistan is not a viable option.
18. I note that a decision to refuse Mr [NBND] a Protection visa on character grounds is not, in itself, a decision to remove Mr [NBND] from Australia, nor does it necessarily lead to such action.
Other Considerations
19. The evidence available to me states that Mr [NBND’s] immediate family consisting of a spouse, two minor children, three younger sisters and four younger brothers, all reside in Afghanistan. I have taken into account that my decision may result in continued separation of the family unit.
20. The evidence available to me does not indicate that Mr [NBND] has any links to Australia.
21. I accept the medical evidence that Mr [NBND] has exhibited symptoms of depression and insomnia whilst in immigration detention and [attempted] suicide three months prior to his offending.
22. I have given serious consideration to the evidence informing of Mr [NBND’s] mental health issues.
CONCLUSION
23. I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act 1958, and (2) all other evidence available to me, including evidence provided by, or on behalf of Mr [NBND].
24. In reaching my decision to refuse Mr [NBND] a Protection visa, I have taken the view that engaging in criminal behaviour while in immigration detention is serious and that the Australian community has an expectation that people who seek to remain in Australia will respect Australia’s laws and legal authority, and be of good character. I considered that the consequences of such behaviour in particular cases should also provide a disincentive to others who may be at risk of engaging in criminal behaviour while in immigration detention.
25. I have given consideration to the fact that Mr [NBND] is also a man who has serious mental health issues.
26. In reaching my decision, I consider that, notwithstanding that Mr [NBND] is a person to whom Australia has protection obligations, his behaviour demonstrates a fundamental disrespect for Australian laws, standards and authorities and, consistent with the introduction of the new limb of the character test in s501(6)(aa), that behaviour should attract consequences under the Migration Act.
27. Having given full consideration to all of these matters, I have decided to exercise my discretion to refuse to grant Mr [NBND’s] application for a Protection (Class XA) visa, under s501(1), noting that a decision to refuse a visa application is not, of itself, incompatible with Australia meeting its obligations in his particular case.
50 This decision is in very similar terms to the decision with respect to NBNC. Parts of it are identical. Like the decision with respect to NBNC, paragraph 18 raises an issue dealt with in NBMZ and the decision as a whole raises issues dealt with in that case.
51 Paragraphs 11-14, 21 and 24-26 raise the same further issues which I mentioned with respect to NBNB and NBNC.
NBNE
52 NBNE was born in Afghanistan. He entered Australia at Christmas Island on 25 March 2011 and the same day was transferred to the Detention Centre in Darwin.
53 On 5 April 2012 an Independent Protection Assessor found that he should be recognised as a person to whom Australia has protection obligations because if he was returned to Afghanistan in the reasonably foreseeable future he would face a real chance of harm amounting to persecution.
54 Meanwhile, with NBNC, NBND and NBNF he was involved on 8 November 2011 in an incident at the Detention Centre. On 23 November 2012 he was, together with them, convicted in the Darwin Court of Summary Jurisdiction of one count of destroying or damaging Commonwealth property and one count of the joint commission of an offence. He, like them, pleaded guilty, was convicted, was released on a $1000 recognizance to be of good behaviour for a period of 18 months and ordered to pay reparation in the amount of $3181.97.
55 The Minister for Immigration and Citizenship (then the Honourable Chris Bowen MP) in his case also on 18 January 2013 exercised a power under s 46A of the Act to allow NBNE to lodge an application for a protection visa, and on 4 February 2013 he did so. On 14 February 2013, NBNE was advised that the Minister was considering refusing his visa application.
56 On 25 April 2013 the Minister for Immigration and Citizenship (then the Honourable Brendan O’Connor MP) approved NBNE being placed in community detention, where he remains.
57 On 25 June 2013 the Minister for Immigration and Citizenship (the Honourable Brendan O’Connor MP) refused NBNE a protection visa. The Minister’s reasons are as follows:
STATEMENT OF REASONS FOR REFUSAL OF A VISA UNDER SUBSECTION 501(1) OF THE MIGRATION ACT 1958 - DECISION BY THE MINISTER
Mr [NBNE] [dob]
This statement relates to the application for the grant of a Protection (Class XA) visa to Mr [NBNE]. Any other visa application by Mr [NBNE] which is currently undecided will be refused by operation of law, pursuant to subsection 501F(2) of the Act and any other visa held by Mr [NBNE] at the time of the decision will be cancelled by operation of law pursuant to subsection 501F(3) of the Act.
CHARACTER TEST
l. The character test is defined in subsection 501(6) to include:
For the purposes of this section, a person does not pass the character test if:
…
(aa) the person has been convicted of an offence that was committed:
(i) while the person was in immigration detention;
…
2. On 23 November 2012, Mr [NBNE] was convicted in the Darwin Court of Summary Jurisdiction in the Northern Territory of the following offences and sentenced as shown:
• destroying and damaging Commonwealth property - directed to enter into an 18 month good behaviour bond on self-recognisance in the amount of $1000.
• aid/ abet/ counsel/ procure commission of offence by another - directed to enter into an 18 month good behaviour bond on self-recognisance in the amount of $1000.
3. The offences were committed on 8 November 2011 whilst Mr [NBNE] was being held at Northern Immigration Detention Centre in Darwin.
4. Mr [NBNE] has been convicted of offences that were committed while he was in immigration detention. For the purpose of s501(1) of the Act, Mr [NBNE] does not pass the character test by virtue of s501(6)(aa)(i) and he has not satisfied me that he passes the character test.
DISCRETION
5. Having found that Mr [NBNE] does not pass the character test and having assessed the information set out in the Issues Paper and attachments, I considered whether to exercise my discretion to refuse to grant Mr [NBNE’s] visa.
RELEVANT CONSIDERATIONS
Criminal Conduct
6. Mr [NBNE] has been·convicted of the criminal offences of destroying and damaging Commonwealth property and aid/ abet/ counsel/ procure commission of offence by another. This offending involved violent acts which led to the destruction and damage of property and I consider this to be very serious.
7. Mr [NBNE’s] criminal conduct is of a type that will not be tolerated while people are in immigration detention. I am of the view that crimes committed in immigration detention, such as the ones committed by Mr [NBNE], are serious.
8. The sentencing Magistrate remarked that the riot that Mr [NBNE] participated in ‘disturbed and distressed other detainees’ and as a result the ‘loss of the facilities would have been felt for a lot longer by all detainees’. The Magistrate also commented ‘The offence is a serious one...’ noting the elements of premeditation and organisation. I adopt the Magistrate’s views that Mr [NBNE’s] offence is to be viewed seriously given the secure environment and possible endangerment of life, as well as the disruption and loss experienced by the other detainees.
9. I have also noted the damage and destruction of Commonwealth property that occurred as a result of Mr [NBNE’s] offending. I have considered Mr [NBNE’s] agent’s submission in relation to his role in the riot, in which he ‘picked up and threw four storage crates scattering the contents of cutlery and condiments over the floor, and upturned a plastic table and upturned a pool table’.
10. I find Mr [NBNE’s] disposition for the above offending, involving convictions and directions to enter into an 18 month good behaviour bond on self-recognisance in the amount of $1000 and an order to pay restitution in the amount of $3,181.87 [sic: $3,181.97] is reflective of the seriousness of his offending.
11. Mr [NBNE’s] criminal history record reflects no other offending in Australia.
12. I also note the Magistrate’s comment ‘all...are men of good character. There is nothing alleged against them before this incident or, indeed, afterwards’.
13. The sentencing Magistrate noted ‘it is unknown as to what sparked the offence’. I note that Mr [NBNE’s] migration agent submitted on his behalf that ‘the immense pressure Mr [NBNE] has been under for a prolonged period and his poor mental health impacted on his behaviour and subsequent involvement in the incident of 8 November 2011’.
14. I have considered Mr [NBNE’s] remorse, and note his action of pleading guilty at the earliest opportunity shows he takes full responsibility. I have taken into consideration his agent’s statement that there is no risk of the harm reoccurring.
International Obligations
Best interests of Minor Children in Australia
15. The evidence available to me does not indicate that there are any children whose best interests may be affected by the refusal of Mr [NBNE’s] visa application and as such this consideration is not relevant to my decision.
Non-refoulement obligations
16. An Independent Protection Assessment dated 5 April 2012 determined that Mr [NBNE] is a person to whom Australia has protection obligations under the Refugees Convention and therefore he meets the criterion for a Protection visa set out in s36(2) of the Act.
17. I accept that Mr [NBNE] has a well-founded fear of being persecuted in the foreseeable future if he was returned to Afghanistan and that Australia has a non-refoulement obligation under the Refugees Convention to Mr [NBNE] in respect of Afghanistan. I also note the finding that there is no evidence to suggest that Mr [NBNE] has the right to enter and reside in any safe third country and that relocation within Afghanistan is not a viable option.
18. I note that a decision to refuse Mr [NBNE] a Protection visa on character grounds is not, in itself, a decision to remove Mr [NBNE] from Australia, nor does it necessarily lead to such action.
Other Considerations
19. The evidence available to me states that Mr [NBNE’s] immediate family consisting of his mother and four sisters, all reside in Afghanistan.
20. I accept the medical evidence that Mr [NBNE] has exhibited symptoms of stress, depression and insomnia whilst in immigration detention and has self-harmed.
21. I have given serious consideration to the evidence informing of Mr [NBNE’s] mental health issues.
22. I have considered the advice that Mr [NBNE] has not had any incidents since being placed in community detention.
23. I have taken into consideration the two letters of support provided by Australian citizens for Mr [NBNE].
CONCLUSION
24. I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act 1958, and (2) all other evidence available to me, including evidence provided by, or on behalf of Mr [NBNE].
25. In reaching my decision to refuse Mr [NBNE] a Protection visa, I have taken the view that engaging in criminal behaviour while in immigration detention is serious and that the Australian community has an expectation that people who seek to remain in Australia will respect Australia’s laws and legal authority, and be of good character. I considered that the consequences of such behaviour in particular cases should also provide a disincentive to others who may be at risk of engaging in criminal behaviour while in immigration detention.
26. I have given consideration to the fact that Mr [NBNE] is also a man who has serious mental health issues.
27. In reaching my decision, I consider that, notwithstanding that Mr [NBNE] is a person to whom Australia has protection obligations, his behaviour demonstrates a fundamental disrespect for Australian laws, standards and authorities and, consistent with the introduction of the new limb of the character test in s501(6)(aa), that behaviour should attract consequences under the Migration Act.
28. Having given full consideration to all of these matters, I have decided to exercise my discretion to refuse to grant Mr [NBNE’s] application for a Protection (Class XA) visa, under s501(1), noting that a decision to refuse a visa application is not, of itself, incompatible with Australia meeting its obligations in his particular case.
58 This decision also is in very similar terms to the decisions with respect to NBNC and NBND. Parts of it are identical. Like those decisions, paragraph 18 raises an issue dealt with in NBMZ and the decision as a whole raises issues dealt with in that case.
59 Paragraphs 11-14, 20 and 25-27 raise the same further issues which I mentioned with respect to NBNB, NBNC and NBND.
NBNF
60 NBNF was born in Afghanistan. He also arrived at Christmas Island on 25 March 2011 and on the same day was transferred to the Detention Centre in Darwin.
61 On 13 February 2012 an Independent Protection Assessor recommended that NBNF be recognised as a person to whom Australia has protection obligations.
62 In the meantime, together with NBNC, NBND and NBNE, he was involved in an incident on 8 November 2011 at the Northern Immigration Detention Centre in which damage was caused to property in the Detention Centre. On 23 November 2012 he was, with them, convicted of one count of destroying or damaging Commonwealth property and one count of the joint commission of an offence. Like them, he pleaded guilty, was convicted and released on a $1000 recognizance to be of good behaviour for a period of 18 months. He was ordered to pay reparation in the amount of $3181.97.
63 Notwithstanding these matters, on 18 January 2013 the Minister for Immigration and Citizenship (then the Honourable Chris Bowen MP) exercised his power under s 46A of the Act to allow NBNF to lodge an application for a protection visa, and on 4 February 2013 he did so. On 13 February 2013 he was issued with a notice that the Minister was considering refusing his visa application.
64 On 25 April 2013 NBNF was also placed in community detention, where he remains with NBNC, NBND and NBNE.
65 On 25 June 2013 the Minister for Immigration and Citizenship (then the Honourable Brendan O’Connor MP) refused NBNF a protection visa. The Minister’s reasons were as follows:
STATEMENT OF REASONS FOR REFUSAL OF A VISA UNDER SUBSECTION 501(1) OF THE MIGRATION ACT 1958 - DECISION BY THE MINISTER
Mr [NBNF] [dob]
This statement relates to the application for the grant of a Protection (Class XA) visa to Mr [NBNF]. Any other visa application by Mr [NBNF] which is currently undecided will be refused by operation of law, pursuant to subsection 501F(2) of the Act and any other visa held by Mr [NBNF] at the time of the decision will be cancelled by operation of law pursuant to subsection 501F(3) of the Act.
CHARACTER TEST
l. The character test is defined in subsection 501(6) to include:
For the purposes of this section, a person does not pass the character test if:
…
(aa) the person has been convicted of an offence that was committed:
(i) while the person was in immigration detention;
…
2. On 23 November 2012, Mr [NBNF] was convicted in the Darwin Court of Summary Jurisdiction in the Northern Territory of the following offences and sentenced as shown:
• destroying and damaging Commonwealth property - directed to enter into an 18 month good behaviour bond on self-recognisance in the amount of $1000.
• aid/ abet/ counsel/ procure commission of offence by another - directed to enter into an 18 month good behaviour bond on self-recognisance in the amount of $1000.
3. The offences were committed on 8 November 2011 whilst Mr [NBNF] was being held at Northern Immigration Detention Centre in Darwin.
4. Mr [NBNF] has been convicted of offences that were committed while he was in immigration detention. For the purpose of s501(1) of the Act, Mr [NBNF] does not pass the character test by virtue of s501(6)(aa)(i) and he has not satisfied me that he passes the character test.
DISCRETION
5. Having found that Mr [NBNF] does not pass the character test and having assessed the information set out in the Issues Paper and attachments, I considered whether to exercise my discretion to refuse to grant Mr [NBNF’s] visa.
RELEVANT CONSIDERATIONS
Criminal Conduct
6. Mr [NBNF] has been·convicted of the criminal offences of destroying and damaging Commonwealth property and aid/ abet/ counsel/ procure commission of offence by another. This offending involved violent acts which led to the destruction and damage of property and I consider this to be very serious.
7. Mr [NBNF’s] criminal conduct is of a type that will not be tolerated while people are in immigration detention. I am of the view that crimes committed in immigration detention, such as the ones committed by Mr [NBNF], are serious.
8. The sentencing Magistrate remarked that the riot that Mr [NBNF] participated in ‘disturbed and distressed other detainees’ and as a result the ‘loss of the facilities would have been felt for a lot longer by all detainees’. The Magistrate also commented ‘The offence is a serious one...’ noting the elements of premeditation and organisation. I adopt the Magistrate’s views that Mr [NBNF’s] offending is to be viewed seriously given the secure environment and possible endangerment of life, as well as the disruption and loss experienced by the other detainees.
9. I have also noted the damage and destruction of Commonwealth property that occurred as a result of Mr [NBNF’s] offending. I have considered Mr [NBNF’s] agent’s submission in relation to his role in the riot, in which he ‘held a metal pole in his hand, used the metal pole to hit and destroy a table, a computer, a microwave oven, a refrigerator, a drink machine and a DVD player.’
10. I find Mr [NBNF’s] disposition for the above offending, involving convictions and directions to enter into an 18 month good behaviour bond on self-recognisance in the amount of $1000 and an order to pay restitution in the amount of $3,181.87 [sic: $3,181.97] is reflective of the seriousness of his offence.
11. Mr [NBNF’s] criminal history record reflects no other offending in Australia.
12. I also note the Magistrate’s comment ‘all...are men of good character. There is nothing alleged against them before this incident or, indeed, afterwards’.
13. The sentencing Magistrate noted ‘it is unknown as to what sparked the offence’. I note that Mr [NBNF’s] migration agent submitted on his behalf that ‘the pressures Mr [NBNF] was under and his poor mental health impacted on his behaviour and subsequent involvement in the incident of 8 November 2011’, though the court did not explicitly find this.
14. I have considered Mr [NBNF’s] remorse, and note his action of pleading guilty at the earliest opportunity shows he takes full responsibility. I have taken into consideration his agent’s statement that there is no risk of the harm reoccurring.
International Obligations
Best interests of Minor Children in Australia
15. The evidence available to me does not indicate that there are any children whose best interests may be affected by the refusal of Mr [NBNF’s] visa application and as such this consideration is not relevant to my decision.
Non-refoulement obligations
16. An Independent Protection Assessment dated 13 February 2012 determined that Mr [NBNF] is a person to whom Australia has protection obligations under the Refugees Convention and therefore he meets the criterion for a Protection visa set out in s36(2) of the Act.
17. I accept that Mr [NBNF] has a well-founded fear of being persecuted in the foreseeable future if he was returned to Afghanistan and that Australia has a non-refoulement obligation under the Refugees Convention to Mr [NBNF] in respect of Afghanistan. I also note the finding that there is no evidence to suggest that Mr [NBNF] has the right to enter and reside in any safe third country and that relocation within Afghanistan is not a viable option.
18. I note that a decision to refuse Mr [NBNF] a Protection visa on character grounds is not, in itself, a decision to remove Mr [NBNF] from Australia, nor does it necessarily lead to such action.
Other Considerations
19. The evidence available to me states that Mr [NBNF’s] immediate family consisting of two brothers and a sister, all reside in Iran.
20. I accept the medical evidence that Mr [NBNF] has exhibited symptoms consistent with a diagnosis of Major Depressive Disorder and post-traumatic stress whilst in immigration detention and was found with a noose in his room, six weeks prior to his offending.
21. I have given serious consideration to the evidence informing of Mr [NBNF’s] mental and physical health issues, inclusive of a gastric condition for which he is receiving appropriate medical attention.
22. I have considered the advice that Mr [NBNF], since being placed in community detention, has not had any incidents, that he has commenced English language classes and attended an activities workshop.
23. The evidence available to me does not indicate that Mr [NBNF] has any other links to Australia.
CONCLUSION
24. I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act 1958, and (2) all other evidence available to me, including evidence provided by, or on behalf of Mr [NBNF].
25. In reaching my decision to refuse Mr [NBNF] a Protection visa, I have taken the view that engaging in criminal behaviour while in immigration detention is serious and that the Australian community has an expectation that people who seek to remain in Australia will respect Australia’s laws and legal authority, and be of good character. I considered that the consequences of such behaviour in particular cases should also provide a disincentive to others who may be at risk of engaging in criminal behaviour while in immigration detention.
26. I have given consideration to the fact that Mr [NBNF] is also a man who has serious mental health issues, and that he is now participating in the Australian community in a gainful manner.
27. In reaching my decision, I consider that, notwithstanding that Mr [NBNF] is a person to whom Australia has protection obligations, his behaviour demonstrates a fundamental disrespect for Australian laws, standards and authorities and, consistent with the introduction of the new limb of the character test in s501(6)(aa), that behaviour should attract consequences under the Migration Act.
28. Having given full consideration to all of these matters, I have decided to exercise my discretion to refuse to grant Mr [NBNF’s] application for a Protection (Class XA) visa, under s501(1), noting that a decision to refuse a visa application is not, of itself, incompatible with Australia meeting its obligations in his particular case.
66 This decision is also in very similar terms to the decisions with respect to NBNC, NBND and NBNE. Parts of it are identical. Like those three decisions, paragraph 18 raises an issue dealt with in NBMZ and the decision as a whole raises issues dealt with in that case.
67 Paragraphs 11-14, 20 and 25-27 raise the same further issues which I mentioned with respect to each of the other four applicants in the present case.
Factual similarities
68 It may be seen that, apart from NBNB who came from a different country and was involved in different events, the other applicants’ circumstances have many matters in common. They are each Afghani, they all arrived in Australia at Christmas Island on the same day and were thereupon transferred to the Detention Centre in Darwin. They were involved together in the incident on 8 November 2011 and were convicted and sentenced in a group, receiving identical punishment.
69 Each applicant (i.e. all five of them) has been found to be a person to whom Australia owes protection obligations and each was permitted to make an application for a protection visa notwithstanding their conviction and notwithstanding that by reason of those convictions none of them passed the character test stated in s 501(6)(aa) of the Migration Act.
70 Although each applicant had been permitted to lodge an application for a protection visa, shortly after doing so each was advised that the Minister was considering refusing the application which had shortly before been permitted to them.
71 The Minister’s reasons for decision in each case are practically indistinguishable.
72 Overall, the cases bear great similarities to the circumstances considered in NBMZ. It is quite apparent that the Minister’s decision in each of the present cases owes a great deal to the pursuit of the same policy apparent in NBMZ.
The convictions and sentence
NBNB
73 The charges against NBNB were dealt with in his presence in the Darwin Court of Summary Jurisdiction in the Northern Territory on 18 September 2012. The representative of the Commonwealth Crown asked for a term of imprisonment, a submission which the magistrate appeared to find surprising, saying:
HIS HONOUR: … Why do you say that given this man has never been before a court before that this is not one of those cases where I’m being asked to impose a term of imprisonment as the first resort when there’s clear principle that imprisonment should be imposed only as a matter of last resort?
74 The submission of the Commonwealth Crown was based upon the notion that the court should “look at the issues of general and specific deterrence and denunciation”. The submission by the Commonwealth Crown appears to have been made with a scant, if any, regard to s 17A(1) of the Crimes Act 1914 (Cth) which provides:
17A Restriction on imposing sentences
(1) A court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
…
75 Amongst the comments made by the sentencing magistrate at the time of passing sentence were the following:
“your life history is a very sad one”;
“it is unsurprising that you have suffered a great deal of emotional distress. You have suffered depression; indeed, major depression”;
“importantly, you come before me as a person with no prior convictions. In general terms it seems you have a good work record and the circumstances of your life are completely different to those who one normally sees appearing in this court for spitting as drunken thugs”.
76 The sentencing magistrate dealt with a submission by the Commonwealth Crown that the Serco officer was anxious about the possibility of having been infected with a communicable disease such as hepatitis or HIV. The sentencing magistrate said:
It is apparent that this, your victim, like apparently many others in the community have a great deal of fear relating to the possibility of the transference of communicable diseases when spat upon. I can only comment that it seems that that fear is out of proportion for the reality that exists, as I understand it, but nevertheless it is a form of assault which is very harmful to the people it is perpetrated against.
77 The sentencing magistrate recorded a concession by counsel for NBNB that his conduct was disgraceful and said, “The offence you have committed is a serious offence”. NBNB was given credit for accepting responsibility by his early plea.
78 As earlier indicated, the good behaviour period has expired.
NBNC, NBND, NBNE and NBNF
79 These applicants were all dealt with together, on 23 November 2012 by the Court of Summary Jurisdiction at Darwin. The Magistrate addressed them jointly. Amongst the sentencing remarks were:
HER HONOUR: … I’m going to sentence the gentlemen now. All of the gentlemen before me have pleaded guilty in relation to destroying and damaging Commonwealth property. …
All of the men who come before me are men of good character. There is nothing alleged against them before this incident, or indeed, afterwards. …
… general deterrence, that is giving these men a sentence which sends a message to other people in similar circumstances is still an important factor and that is for the good order of detention facilities. Specific deterrence, that is a sentence which brings home to these men that what they have done is wrong is also an important factor.
80 I have selected passages which illustrate two matters.
81 First, with the exception of the offences with which they were charged, there was not and is not now any suggestion that any of those four applicants are prone to criminal behaviour of any kind, or pose a risk to the Australian community of that kind.
82 Secondly, the sentencing magistrate dealt explicitly with the notions of general and specific deterrence, as is usual in criminal matters. The recording of convictions, the orders to be of good behaviour for 18 months and the orders for reparation are ones clearly intended (by the Magistrate at least) to address those issues.
Direction No. 55
83 Each of the applicants was provided with a copy of Direction No. 55 when they were informed that consideration was being given to refusing the visa for which each had been expressly, by the earlier Minister (Mr Bowen) personally, permitted to apply. They were each told that Direction No. 55 did not bind the Minister, but no doubt they anticipated that it provided a reasonably reliable guide to the factors which would be relevant to an assessment of their application.
84 Direction No. 55 says in its preamble:
6. Preamble
6.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2) Under section 501 of the Act, a person may be refused a visa if the person does not satisfy the decision-maker that they pass the character test. A person may have their visa cancelled if the decision-maker reasonably suspects that the person does not pass the character test, and the person does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
(3) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act to refuse to grant a visa to, or to cancel the visa of, a person who does not satisfy the Minister that the person passes the character test. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
6.2 General Guidance
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a person’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a person does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizens visa under section 501. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B of this Direction.
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(4) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(6) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
(Emphasis added.)
85 The passages I have emphasised give unmistakeable prominence to the necessity for decision-makers to evaluate the consequences for the Australian community of the grant (or retention) of a visa. The “general guidance” offered and the “principles” stated represent a blend of considerations personal to a visa applicant or visa holder (including their past and likely future conduct) and those which affect the interests of the Australian community, in the event that a visa is granted or retained by that person. A conspicuous omission is any mention of the possibility that a decision will be made, or a discretion exercised, so as to deal with, or discourage, conduct by other people rather than to deal with the circumstances of the visa applicant or visa holder; that is to say, with their own past and likely future conduct.
86 The Minister’s directions to decision-makers about how to exercise the discretion under s 501 to refuse a visa state the primary considerations to be taken into account (in Part B) in the following way:
11. Primary considerations – visa applicants
(1) In deciding whether to refuse a person’s visa, the following are primary considerations:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Whether Australia has international non-refoulement obligations to the person.
87 Further guidance and instruction is then given about how to assess those matters. The ones of particular relevance to each of the applicants are (a) and (c).
88 I shall not deal separately with (c) in the present case. My discussion in NBMZ of the significance of Australia’s obligations under Article 33 of the Refugees Convention when considered in the light of ss 189 and 198 of the Act should be sufficient to indicate that in none of the present cases (like NBMZ) did the Minister give any apparent consideration to the consequences of “non-refoulement” acting in combination with ss 189 and 198 of the Act.
89 As to (a) the following specific statements are made in Direction No. 55:
11.1 Protection of the Australian community
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
a) The nature and seriousness of the person’s conduct to date; and
b) The risk to the Australian community should the person commit further offences or engage in other serious conduct.
11.1.1 The nature and seriousness of the conduct
(1) In considering the nature and seriousness of the person’s criminal offending or other serious conduct to date, decision-makers must have regard to:
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c) Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; after the person escaped from immigration detention, but before the person was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
d) The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s501(6)(b) or (d), or is not of good character under s501(6)(c), is considered to be serious;
e) The sentence imposed by the courts for a crime or crimes;
f) The frequency of the person’s offending and whether there is any trend of increasing seriousness;
g) The cumulative effect of repeated offending;
h) Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
i) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
(Emphasis added.)
90 Specific statements are made in Direction No. 55 about the risk to the Australian community as follows:
11.1.2 The risk to the Australian community should the person commit further offences or engage in other serious conduct
(1) In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
(2) Decision-makers should also consider whether the purpose of the intended stay reflects strong or compassionate reasons for granting a short-stay visa. In making the risk assessment, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
b) The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
i. information and evidence from independent and authoritative sources on the likelihood of the person re-offending; and
ii. evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii. the duration of the intended stay in Australia.
(Emphasis added.)
91 Again, these directions are conspicuous by the lack of any indication that the case of an individual visa applicant will (or might) be adversely affected by the introduction of a desire to send a message to others, rather than deal with the conduct (past and potential) of the visa applicant.
92 As will have been seen from the Minister’s decisions set out above, the Minister stated that he took into account (and he did not reject) statements made on behalf of NBNB that he was “a person of good character, without any substantial criminal record, who poses no risk of engaging in criminal conduct or causing harm to the Australian community” and that he had no other history of offending in Australia. The Minister stated that he took into account (and he did not reject) statements made about or on behalf of NBNC, NBND, NBNE and NBNF that they had no other record of offending in Australia, that they were men of good character and that there was “no risk of the harm reoccurring”.
93 In respect of NBNC and NBNF, the Minister also said that they were now participating in the Australian community in a gainful manner. In the case of NBNE, the Minister referred to advice that he “has not had any incidents since being placed in community detention”.
94 It might be noted that NBNC, NBND, NBNE and NBNF were each placed in community detention together on 25 April 2013 – i.e. after the time each was permitted to apply for a protection visa and did so; after each was given notice that the Minister was considering refusal of a visa; but before refusal. Each remains in community detention.
95 Placement in community detention is authorised by s 197AB of the Act. However, subject to some presently irrelevant exceptions, the Act and regulations continue to apply as if a person in community detention was being kept in immigration detention (s 197AC(1)).
96 It may be inferred in the case of those four applicants that no serious apprehension was entertained, or is entertained, by the Minister that any of them poses an unacceptable risk to the Australian community.
97 The significance of the content of Direction No. 55, and the circumstances under which each applicant was provided with a copy, will be discussed further when I deal with a submission that the applicants were denied natural justice.
The applicants’ arguments
98 The applicants’ arguments fall into three broad categories. First, there is the argument I have already mentioned – that s 501(6)(aa) of the Act is invalid. Then, there are a group of contentions to the effect that the Minister’s decisions are vitiated by jurisdictional error upon grounds recognised as appropriate for “judicial review”, including denial of natural justice, failing to take account of relevant matters, taking into account irrelevant matters, errors of statutory construction and that the decisions were “legally unreasonable”. Finally, a specific argument has been advanced that the Minister wrongly failed to obtain and examine the individual records of each applicant relating to their detention so that the Minister failed to give “proper, genuine and realistic” consideration to the applicants’ health issues.
Validity of s 501(6)(aa)
99 One of the circumstances stated by s 65 of the Act in which a visa must not be granted is if it is “prevented” by s 501 of the Act. Section 501 of the Act provides a discretion to refuse a visa in a number of identified circumstances, using the notion of a “character test” to which s 501 gives content.
100 Section 501 provides:
501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate—natural justice applies
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
(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.
Decision of Minister—natural justice does not apply
(3) The Minister may:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test; and
(d) the Minister is satisfied that the refusal or cancellation is in the national interest.
(4) The power under subsection (3) may only be exercised by the Minister personally.
(5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).
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)); or
(aa) the person has been convicted of an offence that was committed:
(i) while the person was in immigration detention; or
(ii) during an escape by the person from immigration detention; or
(iii) after the person escaped from immigration detention but before the person was taken into immigration detention again; or
(ab) the person has been convicted of an offence against section 197A; or
(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or
(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test.
Substantial criminal record
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(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; or
(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.
Periodic detention
(8) For the purposes of the character test, if a person has been sentenced to periodic detention, the person’s term of imprisonment is taken to be equal to the number of days the person is required under that sentence to spend in detention.
Residential schemes or programs
(9) For the purposes of the character test, if a person has been convicted of an offence and the court orders the person to participate in:
(a) a residential drug rehabilitation scheme; or
(b) a residential program for the mentally ill;
the person is taken to have been sentenced to a term of imprisonment equal to the number of days the person is required to participate in the scheme or program.
Pardons etc.
(10) For the purposes of the character test, a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if:
(a) the conviction concerned has been quashed or otherwise nullified; or
(b) the person has been pardoned in relation to the conviction concerned.
Conduct amounting to harassment or molestation
(11) For the purposes of the character test, conduct may amount to harassment or molestation of a person even though:
(a) it does not involve violence, or threatened violence, to the person; or
(b) it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person.
Definitions
(12) In this section:
court includes a court martial or similar military tribunal.
imprisonment includes any form of punitive detention in a facility or institution.
sentence includes any form of determination of the punishment for an offence.
Note 1: Visa is defined by section 5 and includes, but is not limited to, a protection visa.
Note 2: For notification of decisions under subsection (1) or (2), see section 501G.
Note 3: For notification of decisions under subsection (3), see section 501C.
101 The insertion of s 501(6)(aa) and (ab) on 26 April 2011 added to the catalogue of events and circumstances which the Act stated would result in an applicant not passing the character test. That statutorily attributed characteristic invests the Minister with a discretion to refuse a visa, or to cancel a visa earlier granted. The discretion is not qualified, but it is subject to an overriding requirement that it be exercised conformably with the purpose and object of the Act and with proper attention to the merits of the application in question (see NBMZ at [151]-[152]).
102 In my respectful view, no argument is available that it was beyond the power of the Parliament to invest the Minister with a discretion to refuse a visa to a person who committed a crime in a detention centre. How such a discretion might be exercised in a particular case is another, and quite different, question.
103 The investing of a power to consider whether a person (an alien) should be refused a visa because he or she committed a crime (perhaps a very serious one) in a detention centre while awaiting completion of processes connected with their entry into Australia is plainly not unconnected with the exercise of a power concerning aliens. The speculative possibility that a power so invested might be exercised unreasonably, or in an unauthorised manner by a particular Commonwealth officer does not derogate from the power of the Parliament to grant the discretion.
104 In my view, the argument that s 501(6)(aa) is invalid cannot be accepted.
Jurisdictional error generally
105 My reasons for concluding that the Minister made jurisdictional errors in each of the present cases include those which I gave in NBMZ.
106 Each applicant is a refugee. Each has no visa. Each must be detained. Each must be removed from Australia as soon as reasonably practicable. However, none must be sent to their country of origin (where they face persecution) or to any other country where the risk of persecution exists or from whence they might be returned to their own country. In no case has a country suitable to send them been identified.
107 As unlawful non-citizens, therefore, each applicant faces indefinite detention. For reasons explained in NBMZ, it is not relevant to this circumstance that four of the applicants are (like NBMZ) in community detention or that the Minister has discretions under the Act which have not been exercised. The present cases must (like NBMZ) be decided by reference to the legal consequences of the decisions made.
108 In no case did the Minister, in my view, properly address the circumstance that the legal consequence of his decision was that, under the Act, the applicant in question must be removed from Australia as soon as reasonably practicable (NBMZ at [165]-[167]).
109 In no case does it appear that the Minister paid any regard to the fact that the consequence of his decision was that, under the Act, the applicant in question faced indefinite detention (NBMZ at [168]-[179]).
110 In no case does it appear that the Minister paid proper regard to the fact the applicant in question is a refugee in respect of whom Australia owes protection obligations or to the fact that refusal of a visa represented a refusal to honour those obligations in his case (NBMZ at [188]-[191]).
111 In no case does it appear that the Minister made an individual assessment of the application by each applicant for a protection visa. Rather, the reasons for decision in each case conflate the occasion for the exercise of a discretion to refuse a visa with a reason to exercise the discretion in a particular way and thus betray a misunderstanding of the statutory scheme (NBMZ at [201]-[205]).
112 In each of the present cases, in my view, the Minister has proceeded upon the same fundamental flaw which I identified in NBMZ (NBMZ at [206]-[208]).
The relevance of personal circumstances
113 In supplementary written submissions filed with leave, the Minister referred to Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 (“Huynh”) (at [71]-[76]), Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 (“Nystrom”) (at [127]-[128]) and Cunliffe v Minister for Immigration and Citizenship [2012] FCA 79 (at [72]) to support a contention that the Minister was not obliged to take into account the particular circumstances concerning the commission of a criminal offence which caused a visa applicant not to pass the character test.
114 In particular, the Minister relied upon the following statements in the majority judgment in Huynh (at [74]):
74 … If the Minister were able, consistent with the object of the Act, to consider a matter as broad as the national interest, in determining whether a person ought to be permitted to remain in Australia, it does not seem possible to imply some obligation on the Minister’s part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed. By way of illustration, the Minister may consider that the national interest requires that the commission of a particular type of offence will inevitably result in the cancellation of a visa, where there has been a sentence to imprisonment for the requisite term. To construe the section as requiring the Minister to consider factors such as the level of involvement of the visa holder in the offences would cut across that broad discretion. …
115 Those observations must be considered in the context that the specific question being addressed was whether a Minister was obliged to take into account (and be informed about) sentencing remarks made by an appellate court as well as a sentencing judge (see Huynh at [70]). Put more broadly, the question was whether a Minister should consider “the circumstances surrounding the crimes concerned and the imposition of sentences for those crimes” (see Huynh also at [70]).
116 Factors of the more general kind I have identified are clearly ones which the Minister has directed decision-makers to take into account in Direction No. 55 because they relate to the objective seriousness of the conduct which causes a visa applicant or holder not to pass the character test. They are factors to which the Minister may be taken to have paid regard in the present cases because he made an evaluation of the conduct, in each case, that it demonstrated “a fundamental disrespect for Australian laws, standards and authorities” and “should attract consequences under the Migration Act”.
117 Insofar, therefore, as Huynh might suggest that the Minister is not obliged to pay regard to the particular circumstances of offending conduct it has no specific application to the present cases (or to NBMZ).
118 To the extent that Huynh is relied upon to support a more general proposition (as it was in the present cases) that the Minister is under no obligation to pay any regard to, or consider, the consequences for a particular visa applicant of refusal of a visa, the submission faces further difficulties. It appears to me, with respect, not to represent the approach stated by the High Court.
119 The Minister, in this connection, relied on passages in Nystrom to suggest that what was said in Huynh had been adopted by the High Court. The issue being addressed in Nystrom, in the passage relied on by the Minister in the judgment of Heydon and Crennan JJ (with whom Gleeson CJ agreed) at [127]-[128], was whether the Minister, when cancelling a visa, was obliged to separately “identify and consider” (Nystrom at [121]-[122]) the “nature” of any other visa (Nystrom at [121], [122], [123], [129]) which might also be cancelled automatically by operation of the Act.
120 Heydon and Crennan JJ went on, after the passages relied upon by the Minister in the present case (one of which made a reference to Huynh) to say (at [129]):
129 In these circumstances where Mr Nystrom holds two visas, each of which confers the same substantive rights, in cancelling one the Minister is not bound to take into account the “nature” of the other. This is because there was no consideration relevant to Mr Nystrom’s absorbed person visa which was not relevant to and considered when the Minister cancelled his transitional (permanent) visa. Thus, there has been no failure to take account of relevant considerations. Section 501F(3) confirms that conclusion.
121 In my respectful opinion, Nystrom should not be read as approval of any general proposition that the Minister need pay no attention to the consequences of a decision to cancel a visa.
122 In NBMZ I referred to the judgment in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, when a unanimous High Court said, with apparent approval (at [26]):
26 In Khan v Minister for Immigration and Ethnic Affairs, Gummow J considered a migration appeal brought in 1987, when such appeals were decided under the AD(JR) Act. His Honour construed an improper exercise of power as including a reference to an exercise of a discretionary power in accordance with a rule or policy, without regard to the merits of a particular case. His Honour found that in considering all relevant material placed before him, the Minister’s delegate was required to “give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy”.
(Citations omitted.)
123 I take this to be an authoritative statement to the effect that it is not permissible to put to one side, or fail to address, the merits of a particular visa application.
124 In Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713, Gummow J emphasised the necessity to avoid “perfunctory and cursory” consideration of the merits of an application requiring a decision under the Act. It was relevant to his Honour’s analysis in that case that:
in a serious respect, the merits may not properly have been understood when they were evaluated in the light of policy.
125 Notwithstanding the decisions to which the Minister referred in the supplementary written submissions, it is necessary in my respectful view for there to be proper attention to the legal and practical merits of an application when any relevant policy considerations are brought to bear.
126 A central defect in the present case (as in NBMZ) is that the Minister failed to pay regard to some critical legal consequences of his decisions. Those consequences, in my view, may not be ignored or put aside as ones which did not need to be understood and taken into account.
127 The supplementary submissions also referred to Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 (“Djalic”) to support the contention that the Minister was not obliged to pay any regard to difficulties of removing a person from Australia. The relevant passage in Djalic ([87]) appears to refer to factual matters, rather than the legal consequences arising from the interaction of ss 189 and 198 of the Act with Article 33 of the Refugees Convention, which I discussed more fully in NBMZ. In Djalic, the observations upon which the Minister relied in the present case are introduced with a statement that, in that case, there was no evidence that there would be any difficulty of removal. The present cases are quite different. In my view, it was necessary for the Minister to understand and take into account the legal (and practical) consequences of his decision to refuse a visa to each of the applicants. Those consequences arose from the interaction of ss 189 and 198 of the Act with Article 33 of the Refugees Convention. Those were not matters that the Minister could ignore or treat as irrelevant.
128 Accordingly, and for the same reasons as in NBMZ at least, I would set aside the Minister’s decision in each case and make the same orders as in NBMZ.
129 Moreover, in the present cases, there are further reasons why those orders should be made.
The Minister’s purpose
130 In NBMZ I recorded (at [198]) my “firm impression” that the Minister in that case had made his decision:
with an invincible disregard for the circumstances of the applicant and for a purpose which was not related at all to the applicant’s particular claims on Australia for protection from persecution.
131 That impression was insufficient, however, to sustain a final conclusion of jurisdictional error in its own right in NBMZ.
132 The perspective available from the present cases is a broader one. In no case is there any indication that the Minister took into account matters which were directly relevant to the claims for protection made by any of the applicants, or the legal and practical consequences for them of refusing their application. That is to say, in no case did the Minister deal properly with the merits of the visa applications. Rather, in every case and in all cases, it is apparent that the Minister’s purpose in refusing a visa was to provide a “disincentive” to others in detention from engaging in any form of criminal conduct.
133 In each decision the Minister recorded, with apparent acceptance, a representation on behalf of the applicant in question that he posed no future risk to the Australian community. Counsel for the Minister accepted that the Minister had proceeded in each case upon the basis that no concern about the applicant’s future conduct stood in the way of a visa being granted.
134 At the same time, Counsel for the Minister urged upon the Court that nothing in the Minister’s decision should be read as suggesting that refusal of a visa was intended as any form of punishment for past conduct. When pressed about how the Reasons should be read as an explanation for the Minister’s intended purpose, Counsel referred (in the case of NBNB) to paragraphs 24 to 26 (and equivalent paragraphs in the case of the other applicants), read in the light of the matters I have just mentioned.
135 So read, the only reason revealed for refusal of a visa (as no element of punishment was involved and there was no concern about future conduct) was the Minister’s intention that his decision act as a disincentive to others.
136 In my view, it is not putting the matter too strongly to say that the issue of general deterrence was the only reason given.
137 Counsel for the Minister appeared (at one point at least) to accept that was so. When asked (by reference to paragraph 24 in the Reasons concerning NBNB):
… what is the notion which is involved in the proposition that his behaviour should attract consequences, if no thought of punishment of this individual is involved?
138 Counsel answered:
MR LLOYD: Well, the consequences are that he shouldn’t be allowed to remain in Australia, because it’s in the best interests of the Australian community to be protected by not granting him one, because it will deter other conduct in detention centres.
139 Later, Counsel for the Minister elaborated:
MR LLOYD: … What happened was, “You five people” – not that it was done simultaneously or by the same Ministers, but “You five people have committed offences, and it is in the best interests of the national interest of Australia, the object of the Act, not to give you visas, because it will have a general deterrence effect and protect the Australian community through deterring people from committing those and, perhaps, worse crimes at the detention centre.”
140 Those answers very properly in my view state the effect of the Minister’s reasons in each case.
141 Having regard to those matters, in my view it is clear in the present cases that the Minister did not apply his mind to a proper determination of any of the five applications on their own merits.
142 In the present cases it is not necessary to question the premise that general deterrence may be a relevant factor to take into account in the exercise of a discretion under s 501. It may not be the only consideration. A decision based only on a desire to deter others, as in the present cases, does not respond properly to the particular application under consideration or deal with its merits. In the present cases, I conclude that the Minister disregarded the particular merits of each of the visa applications. That was a jurisdictional error.
143 For that reason also in the present cases I would grant relief to the applicants and set aside the Minister’s decisions.
Natural justice
144 The conclusion, in the present cases, that the essential reason for the Minister’s decisions was to provide a “disincentive” to others, and that he did not address himself to the merits of each application, draws attention to a further issue which was directly raised by the applicants in the present case, although not in NBMZ.
145 It is whether the Minister was obliged to give some form of fair indication to each of the applicants that a material factor (even if it was not the only factor) in the Minister’s decision on their particular visa application might be his desire to send a message to others, rather than assess the particular merits of their own application. The applicants may have wished to say something about that issue. They should have had a chance to argue against that prospect, at least in their own particular cases. Not only was there no suggestion that the Minister might approach things in that way, there was every reason for the applicants to believe that the Minister would focus on their own circumstances.
146 As earlier indicated, when each applicant was notified that consideration was being given to refusing the application for a visa which each of them, a short time earlier, had been permitted to make, notwithstanding their convictions and notwithstanding that the Minister was advised that they did not pass the character test, each applicant was sent a copy of Direction No. 55.
147 Direction No. 55 must be followed by a delegate, if that delegate is the decision-maker in relation to a visa application. It is not binding on the Minister, but none of the applicants was told that a decision on their application would be made by the Minister. That question was left unanswered.
148 The applicants were told that a delegate was “required to follow” Direction No. 55. They were also informed:
If the decision as to whether or not you pass the character test and whether to exercise the discretion to refuse to grant you a visa under subsection 501(1) is made by the Minister personally, although the Minister may decide to have regard to the matters discussed in the Direction, the Minister is not required to follow the Direction.
149 Direction No. 55 does not anywhere state that a consideration which should, or may, be taken into account by a delegate in deciding to refuse a visa is that it will provide a disincentive to others to engage in particular forms of conduct. On the other hand, delegates are specifically directed to what are the “primary” and “other” considerations to which they must have regard.
150 Although it may be possible to tease out of the text of some parts of Direction No. 55 a construction of them which is not inconsistent with taking general deterrence into account, in my view that does not involve a fair reading of those parts or conform to the likely understanding of a visa applicant. Those parts (so far as they apply to refusal of visas) appear to me to be the following ones (extracted from the longer passages set out above):
6.2 General Guidance
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
11. Primary considerations – visa applicants
(1) In deciding whether to refuse a person’s visa, the following are primary considerations:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Whether Australia has international non-refoulement obligations to the person.
11.1 Protection of the Australian community
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
a) The nature and seriousness of the person’s conduct to date; and
b) The risk to the Australian community should the person commit further offences or engage in other serious conduct.
151 In each of those parts general statements are made which are not, in express terms, confined to the particular circumstances of a visa applicant. However, those statements must be read in the context in which they appear, and so as to give context to the guidance which is offered to delegates about how to deal with particular applications which are before them.
152 In my view, the only fair reading of the statements set out above in the context in which they appear (which I gave more fully earlier in these reasons), is that delegates are required to assess the conduct of the visa applicant, evaluate the risk to the Australian community in the event that the same or similar conduct is committed (if a visa is granted to that person) and assess the likelihood that the same or similar conduct will be repeated by that applicant.
153 The provision of Direction No. 55 to the applicants, with the advice that delegates would be required to follow it and the Minister may also, not only indicated what the applicants should address but also served to exclude from practical relevance, so far as their responses were concerned, any prospect that the Minister might rely instead on an unannounced and undisclosed consideration.
154 These are not mere matters of form. As Gleeson CJ pointed out in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, notions of natural justice and procedural fairness are concerned with practical injustice. In my view, there was a considerable practical injustice in the course followed in the present cases.
155 In argument it was submitted, in effect, that diligent research by the applicants (or their representatives) might have alerted them to the fact that s 501(6)(aa) was introduced to address the perceived difficulty of criminal conduct in detention centres and that their visa applications might be refused (not by reference to their own conduct and the risk that it might be repeated in some fashion in the Australian community) so as to deter others from criminal conduct – not in the community at large – but in the confines of a detention centre.
156 In my view, any argument of this kind should be rejected. First, it is an unsatisfactory and unrealistic response to the position of non-English speaking refugees who had been detained for a long time and who, it must be accepted, were each psychologically fragile and anxious about their detention. Secondly, suppositions of this kind are no substitute for practical, direct and honest advice to a visa applicant about the matters which will be relevant to an assessment of their application. There can be no justifiable reason to withhold from a visa applicant in the situation of the applicants a plain statement, which they might understand, of the factors critical to the success or failure of their visa application, and critical to their future.
157 In my view, each of the applicants was denied natural justice, each was subjected to a high level of practical injustice and each is, for that reason alone, entitled to have the Minister’s decision in their case set aside.
Medical Issues
158 Counsel for the applicants contended that in each case the Minister should have obtained the individual records of the applicants to better inform himself. An associated submission was that the advice given to the Minister was inadequate. Information about the mental and psychological state of each applicant was said, in each case, to be:
extremely relevant to the Minister’s assessment of his attitude to Australian law, standards and authority which was a decisive factor in the decision to refuse a visa.
159 The argument continued in identical terms with respect to each applicant:
7. The lack of an adequate record or summary of [the applicant’s] mental health “issues” also reflects on the quality of the Minister’s assessment of [the applicant’s] mental health, which the Minister considered relevant to his discretion, and on the impact of his mental health on his attitude to Australian law, standards and authority which the Minister also considered relevant. Without such a record or summary it was impossible for the Minister to give proper, genuine and realistic consideration to these issues because he was not given sufficient information to be able to give such consideration.
160 One immediate difficulty for this line of argument as an element in the identification of a jurisdictional error is that, as the applicants’ own submissions on legal issues accept:
It was recognised [by the Minister] that the [applicant] in each case had serious mental health issues.
161 In fact, although the Minister’s acknowledgement of the health (including mental health) issues confronting each applicant is brief, the reasons in each case acknowledge the specific issues applicable to each applicant.
162 The applicants’ written and oral submissions did not identify any aspect in which it was necessary for the Minister to have the more detailed information proposed in order to reach a proper decision, much less why it would be necessary for the Minister to personally read the medical file of each applicant, as was suggested in argument.
163 As the submissions for the respondent point out, when each of the applicants was notified that consideration was being given to refusing a visa, they were invited to make a submission which included reference to any health issues relied upon. Each of the applicants did make such a submission through a representative. In each case the representative drew attention to, and relied upon, the deterioration in the physical health of the applicant and their fragile psychological state. In each case reassurance was offered about the applicants’ future conduct.
164 Those representations were provided to the Minister in each case, together with a summary of those issues.
165 In Foster v Minister for Customs & Justice (2000) 200 CLR 442, Gleeson CJ and McHugh J said (at [22]-[23]):
22 In Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Brennan J said:
“The Court has no jurisdiction to visit the exercise of a statutory power with invalidity for failure to have regard to a particular matter unless some statute expressly or by implication requires the repository of the power to have regard to that matter or to matters of that kind as a condition of exercising the power.”
23 The level of particularity with which a matter is identified for the purpose of applying this principle may be significant. A related question arises where the failure complained of is not a complete failure to address a certain subject, but a failure to make some inquiry about facts said to be relevant to that subject. … For the appellant’s argument to succeed, there must be found in the legislation an implied obligation on the Minister to examine and investigate the contention at the level of particularity involved in the submission. As was noted above, the factual basis for an assertion that the Minister gave no consideration at all to the subject is lacking.
(Citations omitted)
166 Their Honours went on (at [30]) to say:
30 Whatever may be the theoretical possibility in other cases, when regard is had to the nature of the argument that was advanced by the appellant’s solicitor in the present case, it was open to the Minister, on the material before her, to conclude that she was not satisfied that it would be unjust or oppressive or too severe a punishment to surrender the appellant. Furthermore, in the light of the nature of the representations made to her, there was no statutory obligation, express or implied, which bound the Minister to undertake further investigation or inquiry before concluding that she was not so satisfied. In view of the way the appellant’s case was put to her, she was entitled to conclude that no further inquiry was necessary. She was not bound to make further investigation of the appellant’s prospects of rehabilitation. She was not bound to investigate further the assistance he had supposedly given the authorities. She was not bound to put the results of such investigations, together with everything else she knew of the facts of the case, before a person experienced in United Kingdom sentencing practice and seek an opinion as to how a sentencing judge was likely to respond to them. The Act does not impose such obligations, either expressly or by implication. The Minister was entitled to consider and evaluate the arguments advanced by the appellant’s solicitor on the materials before her. She was not obliged to conduct her own sentencing investigation. The Minister was entitled to conclude, on the information put before her, that she was not satisfied that, by reason of the matters raised by the appellant’s solicitor, it would be unjust or oppressive or too severe a punishment to surrender the appellant.
167 The applicants’ arguments in the present case about the suggested obligation of the Minister to obtain and read each applicant’s medical file cannot survive the application of the principles referred to in those passages.
168 At its highest, the applicants’ argument is that the Minister should have given more weight to the health issues. That does not identify jurisdictional error. In my view, therefore, it should not be accepted that the Minister made a jurisdictional error by not seeking further information.
Relief
169 In the present cases, as in NBMZ, writs of certiorari and prohibition should issue. It is not appropriate or necessary, at this stage at least, to issue any writ of mandamus against the Minister.
170 The Minister should pay the applicants’ costs.
| I certify that the preceding one hundred and sixty-two (162) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. |
Associate:
Dated: 9 April 2014
