FEDERAL COURT OF AUSTRALIA

Tewao v Minister for Immigration and Citizenship [2012] FCAFC 39

THE COURT ORDERS THAT:

1.    The appellant be granted leave to raise as an issue in the appeal the question “did the Minister misapply the statutory test by failing to identify any consideration that is capable of rising to a level of abstraction that engages the “national interest”?”.

2.    The appeal be dismissed.

3.    The appellant pay the respondent’s costs of the appeal as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

cowdroy, reeves and jagot jj

THE APPEAL

1    This is an appeal against the order the primary judge made on 23 December 2011 dismissing the appellant’s application under s 476A(1)(c) of the Migration Act 1958 (Cth) (the Migration Act) to set aside the decision of the respondent, the Minister for Immigration and Citizenship (the Minister), to cancel the appellant’s visa. The primary judge’s reasons for judgment are published as Tewao v Minister for Immigration and Citizenship [2011] FCA 1515.

2    The notice of appeal identifies four grounds, all of which relate to the Minister’s consideration of “the national interest” as required by s 501A(2)(e) of the Migration Act. In summary, the appellant contends that the Minister’s decision to cancel the appellant’s visa is vitiated by jurisdictional error arising from both the substance of the Minister’s consideration as to whether he was satisfied that the cancellation of the appellant’s visa “is in the national interest” as required by s 501A(2)(e) and the denial of procedural fairness to the appellant in the circumstances of that consideration.

BACKGROUND

3    The primary judge’s reasons are best understood against the relevant statutory and factual background.

4    The appellant, a citizen of New Zealand, held a temporary visa permitting his residence in Australia. After the appellant committed an offence resulting in his imprisonment a delegate of the Minister decided to cancel the appellant’s visa under s 501(2) of the Migration Act. The appellant applied to the Administrative Appeals Tribunal (the AAT) for review of this decision. The AAT set aside the decision under review and decided instead that the appellant’s visa should not be cancelled (Tewao and Minister for Immigration and Citizenship [2011] AATA 329).

5    Section 501A(2) of the Migration Act vests a further discretion in the Minister personally after the making of such a decision. Section 501A(2) provides that:

(2)    The Minister may set aside the original decision and:

(a)    refuse to grant a visa to the person; or

(b)    cancel a visa that has been granted to the person;

if:

(c)    the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(d)    the person does not satisfy the Minister that the person passes the character test; and

(e)    the Minister is satisfied that the refusal or cancellation is in the national interest.

6    In s 501A(2) the “original decision” is the decision of the AAT or the Minister’s delegate.

7    Subsections 501A(5),(6) and (7) are also relevant. They provide as follows:

(5)    The power under subsection (2) or (3) may only be exercised by the Minister personally.

(6)    The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (3) in respect of the original decision, whether or not the Minister is requested to do so, or in any other circumstances.

(7)    A decision under subsection (2) or (3) is not reviewable under Part 5 or 7.

8    Parts 5 and 7 of the Migration Act provide for merits review of certain decisions.

9    After the AAT set aside the decision of the Minister’s delegate the Department of Immigration and Citizenship notified the appellant by letter of 5 July 2007 that the Minister “intends to consider whether to set aside the decision of the Administrative Appeals Tribunal and to cancel your visa under subsection 501A(2) of the Act”. The letter continued:

Migration law and visa cancellation on character grounds

Under subsection 501A(2) of the Act the Minister may set aside a decision of the Administrative Appeals Tribunal not to exercise the power under subsection 501(2) of the Act to cancel a visa that has been granted to a person and cancel a visa that has been granted to the person if:

•    the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

•    the person does not satisfy the Minister that the person passes the character test; and

•    the Minister is satisfied that the cancellation is in the national interest.

The power to cancel a visa under subsection 501A(2) of the Act may only be exercised by the Minister personally.

The full text of sections 501 and 501A of the Act is enclosed for your information.

What is the character test?

…

What if you do not pass the character test?

If the Minister reasonably suspects that you do not pass the character test, and you do not satisfy the Minister that you pass the character test (see ‘Your opportunity to comment’, below), the Minister will consider whether the cancellation of your visa is in the national interest.

If the Minister is satisfied that the cancellation of your visa is in the national interest, he will then consider whether to exercise the discretion in subsection 501A(2) of the Act to cancel your visa. The Minister will weigh up all relevant available information before making that decision.

In considering whether to exercise the discretion to cancel your visa under subsection 501A(2) of the Act, the Minister may have regard to, but is not bound by, the factors in the directions given by him under section 499 of the Act to section 501 decision-makers. Those directions are currently contained in Direction No. 41 – Visa Refusal and Cancellation under s501 (“the Direction”).

A copy of the Direction is enclosed for your information.

…

Your opportunity to comment

You have the opportunity to submit any information or material to satisfy the Minister that you pass the character test.

You should note that under subsection 501A(2) of the Act, the Minister will take into consideration the issue of “national interest”. Therefore, you may wish to address this issue too.

You also have the opportunity to comment on the information that will be considered by the Minister and to submit additional information, if you wish.

Further, you have an opportunity to provide reasons or information in relation to why your visa should not be cancelled, even if you are found not to pass the character test. In this regard, it is important to read the enclosed Ministerial Direction carefully and address each factor that you feel applies to you or is relevant to your circumstances. You can also provide any other information that you feel the Minister ought to be aware of and take into account.

10    Direction 41 – Visa Refusal and Cancellation under s 501 (Direction 41) is a direction given by the Minister under s 499 of the Migration Act. Direction 41 binds the Minister’s delegate and the AAT in exercising functions under s 501 of the Migration Act. It does not bind the Minister and is not identified as a matter which the Minister must consider when exercising the Minister’s power under s 501A(2) of the Migration Act. Amongst other things, Direction 41 specifies primary and other considerations relevant to the refusal or cancellation of a visa including the protection of the Australian community, the seriousness and nature of the relevant conduct and the risk that the conduct may be repeated.

11    The appellant, by his solicitor, responded to this notice making a submission on 31 August 2011 that included sections dealing with the national interest and the Direction 41 matters.

12    On 13 September 2011 the Minister decided to cancel the appellant’s visa under s 501A(2) of the Migration Act. This decision was recorded as follows:

I have considered all relevant matters including (1) an assessment of the Character Test as defined by subsection 501(6) of the Migration Act 1958 (2) Ministerial Direction 41 made under section 499 of that Act, as I considered appropriate, and (3) all other evidence available to me, including evidence provided by, on behalf of, or in relation to Hayden Harlem TEWAO in connection with the exercise of my power in s501A (2).

…

Cancellation outcome

(d) I reasonably suspect that Mr TEWAO does not pass the character test and Mr TEWAO has not satisfied me that he passes the character test and I am satisfied that cancellation of his visa is in the national interest. I have decided to exercise my discretion under s501A(2) to set aside the decision of the Tribunal not to cancel Mr TEWAO’s visa. I hereby cancel Mr TEWAO’s Class TY Subclass 444 Special Category (Temporary) visa.

13    Section 501G(1) of the Migration Act required the Minister to give notice of the decision to the appellant including the reasons for the decision (s 501G(1)(e)). The Minister’s statement of reasons for the decision includes the following:

STATEMENT OF REASONS FOR CANCELLATION OF VISA UNDER S501A(2) OF THE MIGRATION ACT 1958

…

CHARACTER TEST

4.    On 13 May 2010 Mr TEWAO was convicted in the District Court of New South Wales of Aggravated Robbery, for which he was sentenced to three years and three months imprisonment.

5.    As a result of this sentence of imprisonment, Mr TEWAO has a substantial criminal record. I find that he does not pass the character test by virtue of s501(6)(a) with reference to s501(7)(c) of the Act and that he has not satisfied me that he passes the character test.

NATIONAL INTEREST

6.    I am satisfied that it is in the national interest that the visa held by Mr TEWAO be cancelled under s501A(2). In making this determination I gave primary consideration to a number of factors, including the seriousness and nature of the crime committed by Mr TEWAO, shown above.

7.    I took into account that the above crime involved an unprovoked and brutal attack on another man, that it was committed with another offender and that Mr TEWAO is an exceptionally large man whose role was to be the ‘enforcer’ in the offence. After considering relevant information, I cannot be satisfied that the risk of further offending by Mr TEWAO is negligible and accordingly I found that the cancellation of Mr TEWAO’s visa is in the national interest.

DISCRETION

8.    Having found that Mr TEWAO does not pass the character test and that it would be in the national interest to cancel his visa, I carefully assessed all of the evidence before me and considered whether to exercise my discretion to set aside the Tribunal’s decision and to cancel Mr TEWAO’s visa. In doing so, I had regard to the considerations in Ministerial Direction No. 41 – Visa refusal and cancellation under s501 (“the Direction”) – in so far as I believed them relevant to the exercising of my powers under s501A(2). While the Direction does not apply to the exercise of my powers under s501A and in any event does not bind me, I considered that the matters set out in Part B of the Direction provide useful guidance for the exercise of my discretion under s501A(2).

9.    I gave primary consideration to the protection of the Australian community, (taking into account the seriousness and nature of the conduct and the risk that the conduct may be repeated), the age at which the person commenced living in Australia, the length of time that the person has lived in Australia and any relevant international obligations.

Protection of Australian Community

Seriousness and nature of conduct

10.    I have noted that the circumstances of the above offence committed by Mr TEWAO and that he inflicted serious injury on the victim without provocation. I consider that the substantial sentence of three years and three months imprisonment is a further indication of the seriousness of the offence.

11.    I noted that Mr TEWAO has been convicted of other offences in Australia.

12.    I have taken into consideration that Mr TEWAO has been assessed as having a mild to moderate degree of intellectual deficiency, that his offending was opportunistic rather than planned and that he was influenced by others and affected by drugs and alcohol at the time.

Risk that the conduct may be repeated

13.    I noted that Mr TEWAO has accumulated several offences of concern during his comparatively short time in Australia, though he has only one breach of a judicial order recorded against him.

14.    I took into account the views of the court, which expressed some hope for Mr TEWAO’s prospects of rehabilitation, provided he received substantial assistance over a long period. I also took into account that while his record during his recent incarceration contained some infringements of prison discipline, his behaviour in prison was considered generally good, particularly regarding his work.

15.    I noted the comments of the court to the effect that Mr TEWAO, as a national of New Zealand, is affected by the limitation of access to certain forms of welfare support in Australia, which might preclude some options for him on probation.

16.    I took into account a psychological assessment which found that the risk of Mr TEWAO re-offending was ‘low-moderate’. I also took into account that the psychologist found that Mr TEWAO’s offending has usually taken place in the context of peer influence and the abuse of alcohol, and that his prospects of avoiding criminal offending in future are accordingly dependent on his ability to avoid such external risk factors.

17.    I noted that Mr TEWAO is presently living with his parents and has regular employment.

…

CONCLUSION

26.    I have considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act 1958, (2) whether cancelling Mr TEWAO’s visa was in the national interest (3) Ministerial Direction 41 under s499 of that Act, as I considered appropriate and (4) all other evidence available to me, including evidence provided by, or on behalf of Mr TEWAO.

27.    In reaching my decision, I concluded that, given the nature and seriousness of Mr TEWAO’s past offending, it was in the national interest to cancel Mr TEWAO’s visa. I found that I could not be confident that that he would not re-offend. Given the serious, violent and unprovoked nature of Mr TEWAO’s Aggravated Robbery offence, I considered any further offending by him potentially could be very serious. Consequently, I found that he represents an unacceptable risk of harm to the Australian community. I found that the protection of the Australian community outweighs Mr TEWAO’s family links with Australia and any other countervailing factors identified above.

28.    Having given full consideration to all of these matters, I decided to exercise my discretion to set aside the Tribunal’s decision of 18 May 2011 and to cancel Mr TEWAO’s Class TY, Subclass 444 Special Category (Temporary) visa under subsection 501A(2).

PRIMARY JUDGE’s REASONS

14    The primary judge recorded the appellant’s submission that the statements in the Minister’s reasons at [7] and [27] “I cannot be satisfied that the risk of further offending by Mr TEWAO is negligible and accordingly I found that the cancellation of Mr TEWAO’s visa is in the national interest” and “I found that I could not be confident that he would not re-offend” disclosed jurisdictional error (at [5]-[7]). At [11] the primary judge said the appellant “submitted that the Minister applied two tests. One, he argued, imposed a requirement that the visa should be cancelled if the risk of recidivism is no higher than negligible, the second, that the visa will be cancelled unless the Minister could be confident that the applicant would not reoffend. He also submitted that the Minister applied these tests without giving him an opportunity to be heard, and so was denied procedural fairness”.

15    The primary judge rejected these contentions.

16    As to the first contention, the primary judge concluded in these terms:

12    The question of what is in the national interest is an evaluative one (Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 (“Madafferi”) at [89]), entrusted to the Minister alone. The factors to which the Minister may have regard in determining the national interest are not set out in the Act. But it may be accepted that it is in the national interest to protect the Australian community from violent crime. Crimes of which a person has been convicted may be of such seriousness or the circumstances in which they were committed of such a nature as to properly found the satisfaction that it is in the national interest that the person’s visa be cancelled: Re Patterson; ex parte Taylor (2001) 207 CLR 391 (“Re Patterson”) at [79]; Madafferi at [86].

13    The Minister made his decision by reference to the nature and seriousness of Mr Tewao’s conduct and the circumstances surrounding the commission of the crime.

14    It is clear that the Minister had regard to the same conduct for two purposes – in the application of the character test and in determining what was in the national interest. But he was entitled to do this, provided there was something in the nature or the seriousness of the conduct or its surrounding circumstances to found his state of satisfaction. See Re Patterson at [80] per Gaudron J. Here, this proviso was satisfied. That is what the Minister was adverting to in paragraph [7] of his statement of reasons. Indeed, the Minister said as much at [27].

15    In my view the Minister did not apply two tests or the wrong test. A test is a rule of general application. The Minister’s remarks do not signify that he imposed a general requirement that a visa should be cancelled unless the risk of reoffending was not negligible or he could be confident the visa holder would not reoffend. The Minister was making a judgment about the import of the risk in the particular circumstances of the case before him. In an individual case a low level of risk can have very serious consequences. It is well accepted that a risk may properly be regarded as substantial, despite a low probability of reoffending, if great harm would result. See, e.g. Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81 per Davies J.

16    The evidence presented to the Minister was that the risk was low or low-moderate (a clinical psychologist, Dr Christopher Lennings, who provided an opinion to Mr Tewao’s solicitors, characterised it in his report as “towards the low end of the moderate range”, later describing it as “low-moderate”; the AAT described it as “low”). It was open to him to conclude from the facts of the offence itself that there was a potential for very serious harm if this risk eventuated, and that consequently any appreciable risk was unacceptable. It is common ground that the risk of reoffending was a relevant consideration. Plainly, the finding was available that the risk of reoffending was not negligible. The Minister was entitled to take that circumstance into account in determining what was in the national interest.

17    As to the second contention, the primary concluded as follows:

18    Mr Tewao does not contend that he was not given an opportunity to be heard on the question of his risk of reoffending. Indeed, he availed himself of the opportunity, making lengthy submissions through his solicitor on the subject. His point is that he should have been told that the Minister was going to apply a test that an applicant’s visa should be cancelled if the risk of recidivism was no higher than negligible, a test that was not mentioned in Direction No. 41 – Visa Refusal and Cancellation under s 501 (“the Direction”).

19    The point must be rejected for a number of reasons.

20    First, as I have concluded, the Minister did not apply such a test.

21    Secondly, the Direction was issued by the Minister under s 499 of the Act to persons or bodies having functions or powers under the Act. The Direction bound the delegate and the tribunal, but not the Minister: s 499(2A). In fact, it did not apply to a decision under s 501A. It dealt with the character test and the exercise of the discretion under s 501. With the notice the Department sent Mr Tewao on 5 July 2011, informing him that the Minister was intending to consider whether to set aside the AAT’s decision and cancel his visa, the Department enclosed a copy of the Direction, together with the other documents the Minister would consider (including the judge’s sentencing remarks). Mr Tewao was advised that the Minister was not bound by the terms of the Direction but might take the factors mentioned in it into account.

22    Thirdly, I am not satisfied that Mr Tewao was not on notice that the Minister might weigh the risk of him reoffending against the seriousness and nature of his criminal conduct. There are a number of references to the risk of reoffending in the Direction. In particular, paragraph 5.2(2) provides that in reaching a decision on whether to cancel a visa a decision-maker needs to consider the nature of the harm the person may cause to the Australian community and the risk of that harm occurring. It provides that one of the primary considerations in deciding whether to cancel a visa is the protection of the Australian community from serious criminal or other harmful conduct, especially crimes involving violence (paragraph 10(1)(a)). Paragraph 10.1.2(1) provides that the person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of reoffending. Paragraph 10.1.2(2)(a) specifies that one of the factors considered as particularly relevant to the assessment of the risk of reoffending is a recent history of convictions. Paragraph 10.1(2) relevantly states that the factors relevant to assessing the level of risk of harm to the community of the person’s continued stay include the seriousness and nature of the relevant conduct and the risk that conduct may be repeated. It is implicit that a balancing of these considerations might take place.

23    Fourthly, the rules of natural justice are flexible, requiring fairness in all the circumstances (Kioa v West (1985) 159 CLR 550) but fairness does not require the Minister to expose either his thought processes or his provisional views (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48]).

THE CASE ON APPEAL

18    The appellant identified three issues in the appeal expressed as follows:

First, did the Minister apply a wrong test or standard, to the effect that in order to be permitted to remain in Australia, the appellant’s recidivism risk must be found to be “negligible”?

Secondly, did the Minister afford the appellant procedural fairness as he did not first inform the appellant that he must be satisfied that the appellant’s recidivism risk must be “negligible”?

Thirdly, did the Minister misapply the statutory test by failing to identify any consideration that is capable of rising to a level of abstraction that engages the “national interest”?

19    As to the first issue, the appellant submitted that:

In the present case, the Minister ought to have asked the question “is cancellation in the national interest?”. Instead, the Minister asked the substituted questions “can I be satisfied that the risk of the appellant reoffending is negligible?” and “can I be confident that the appellant will not re-offend?”. On the national interest question alone, it is plain that a substituted question was asked by the Minister’s words at AB55[7]: “After considering the relevant information, I cannot be satisfied that the risk of further offending by Mr TEWAO is negligible and accordingly I found that the cancellation of Mr TEWAO’s visa is in the national interest” [emphasis added].

The decision is, accordingly, invalid and it should be set aside.

20    As to the second issue, the appellant submitted that:

(1)    The respondent’s requirement that an appellant’s visa should be cancelled if the risk of recidivism was no higher than “negligible” was not first put to the appellant prior to the making of the decision.

(2)    It was not part of the respondent’s published “Direction No 41” setting out the broad policy and approach of the respondent to the making [of] such decisions which the appellant had a legitimate expectation would be followed.

(3)    The decision was made without notice to the appellant that the published policy contained in Direction No 41 would not be applied.

(4)    The procedural unfairness of the Minister’s application of a substituted test was magnified by the fact that the appellant was referred to Direction 41 and provided with a copy of it and it was the Minister’s own policy (and he would be unlikely to be expected to depart from it).

(5)    The standard that the Minister applied to the question of recidivism was several orders of magnitude stricter than anything suggested in Direction 41.

(6)    It was unfair of the Minister to invite submissions based upon a reasonable expectation that a standard the same or alike to the considerations outlined in Direction 41 would be applied, and then apply a much stricter test. The unfairness is that the appellant was lead to make submission that he had a “low” risk of offending, not knowing that such a submission would, given the application of the ‘negligible’ test, inevitably lead to cancellation. It was open to the appellant to argue that the risk of offending was negligible, but the Minister’s unfair process meant that he did not.

21    As to the third issue, the appellant submitted that:

There are numerous authorities to effect that the Minister’s formation of an opinion that cancellation of a visa is in the “national interest” is not discretion at large. The authorities demonstrate that “national interest” requires consideration of something more than merely the seriousness of the subject crime. The Minister must actively turn his or her mind to considerations that work at a “level of abstraction’ that is at the level of “national interest”.

…

In the present case, the Minister’s consideration moved from the identification of a higher than negligible risk of offending directly to a conclusion about the national interest. In so doing, the Minister failed to consider any interest that is national in character, or is capable of engaging the interests of the nation as a whole.

It is true that the Minister did, during the Discretion Step of his decision making process, give consideration to the “protection of the Australian Community”. However, a fair reading of the Minister’s decision record makes plain that these considerations were not taken into account in the Satisfaction Step. The only consideration the Minister considered in the Satisfaction Step was whether the appellant’s prospects of re-offending were negligible. That consideration is, quintessentially, a local and private consideration that does not engage the interests of the country as a whole.

22    The appellant rejected the Minister’s proposition that leave was required to raise the third issue in the appeal as the same issue had been raised below although not dealt with as a separate ground of review by the primary judge. Insofar as leave might be required, the appellant also applied for and said leave should be granted.

DISCUSSION

23    At the outset we should record that we do not accept the appellant’s approach to the analysis of the Minister’s statement of reasons. The appellant submitted that, consistent with the structure of s 501A(2) of the Migration Act, the statement of reasons discloses that the Minister approached the exercise of discretion sequentially. He dealt first with the character test at [4]-[5] of the statement of reasons. He moved on to consider the national interest at [6]-[7] of the statement of reasons. He next considered the factors under Direction 41 at [8]-[25] of the statement of reasons. He then set out his conclusions at [26]-[28] of the statement of reasons. This analysis enabled the appellant to submit that the entirety of the Minister’s consideration of the national interest may be found at [6]-[7] of the statement of reasons.

24    The appellant’s analysis is contrary to principle and fact. In terms of principle, it is well recognised by courts that a statement of reasons, of necessity, must deal with relevant issues in a particular order. The necessities of written expression should not be confused with the task of substantive consideration. In this case, the Minister had but one decision to make – whether or not to cancel the appellant’s visa. To make that decision the Minister had to be satisfied about separate specified matters and consider whether or not to cancel the appellant’s visa. While each relevant matter has to be considered separately in order to found the ultimate decision, the assumption that in making the ultimate decision the Minister’s substantive consideration proceeded in a strict sequence, each step being a wholly self-contained exercise, is unrealistic.

25    In Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 73 ALD 1; [2003] HCA 30 at [14] Gleeson CJ said:

Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole.

26    In Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326; [2002] FCAFC 220 (Madafferi) at [85]-[90] the Full Court of the Federal Court rejected a similar argument noting at [90] that:

Given the range of other matters which the Minister's reasons canvassed… there is a certain artificiality in separating out para 6 as though it represented the only way in which the Minister addressed the issue of national interest.

27    In so concluding the Full Court also made the point that “[t]he Minister in considering the national interest under s 501A(2) may properly have regard to the circumstances which underpin the failure to satisfy him that an applicant for a visa passes the character test” (at [86]).

28    In the present case the appellant’s apparently exclusive focus on the headings used in the Minister’s statement of reasons is also inappropriate. The substance of the reasons discloses that, while the Minister gave separate consideration to the question of the national interest, his consideration of that question was informed by the other material apparent from the statement of reasons. So much is plain from the statement at [6] that, in determining the national interest question, the Minister “gave primary consideration to a number of factors, including the seriousness and nature of crime committed…shown above” (although, perhaps, those factors are shown below [6] but it matters not as the relevant point is the clear cross-referencing by the Minister to other parts of his statement of reasons). It is also apparent from the statement at [7] that “[a]fter considering relevant information…” the Minister could not be satisfied about the identified matters. Similarly, the Minister returned to the national interest at [26]-[28]. It must also not be overlooked that the statement of reasons sets out the reasons for the decision. The decision itself is embodied in a separate document, quoted above. The terms of that document also reflect the actual nature of the Minister’s substantive consideration in that the recital of each of the separate requirements (character test, national interest and discretion) in (d) is preceded by the statement “I have considered all relevant matters including…all other evidence available to me”.

29    For these reasons, the appellant’s proposition that any assessment of the existence of jurisdictional error in respect of the Minister’s consideration of the national interest must be confined to [6] and [7] of the Minister’s statement of reasons should not be accepted.

30    In our view it does not necessarily follow from this conclusion that the appeal must fail. It is still necessary to resolve the three issues on the appeal which the appellant identified.

31    In common with the primary judge we do not read [6] and [7] or [27] of the Minister’s statement of reasons as involving a test, raising a hurdle or even defining as an issue (or howsoever else the appellant chose to describe the effect of the Minister’s consideration) the question whether the appellant’s recidivism risk must be found to be “negligible” (or that the Minister “could be confident” that the appellant would not re-offend) in order that the appellant be permitted to remain in Australia. Although, as the Minister acknowledged, the statement of reasons is sparsely expressed in terms of the national interest, we think the appellant’s case involves a misreading of those reasons.

32    The appellant’s approach involves considering part of one sentence from [7] (“…I cannot be satisfied that the risk of further offending by Mr TEWAO is negligible and accordingly I found that the cancellation of Mr TEWAO’s visa is in the national interest”) and one sentence from [27] of the Minister’s statement of reasons (“I found that I could not be confident that that he would not re-offend”) in isolation from the surrounding context. In so doing the appellant thereby supported the elevation of these references into a form of test, hurdle or issue created by the Minister that the appellant necessarily must pass, leap over or answer in order for the Minister not to be satisfied that the cancellation of the appellant’s visa is in the national interest. A fair reading of the statement of reasons does not support the appellant’s case. The Minister’s reasons show that, in determining whether he was satisfied that it is in the national interest to cancel the appellant’s visa, the Minister gave primary consideration to a number of factors including the seriousness and nature of the crime the appellant committed (at [6]). The Minister took into account that the crime: - (i) involved an unprovoked and brutal attack on another man, (ii) was committed with a co-offender, and (iii) involved using the appellant as an “enforcer” due to his exceptional physical size (at [7]). The Minister then said (at [7]) “After considering relevant information, I cannot be satisfied that the risk of further offending by Mr TEWAO is negligible and accordingly I found that the cancellation of Mr TEWAO’s visa is in the national interest”.

33    Even if these paragraphs are considered in isolation from the balance of the statement of reasons (which we do not consider to be the correct approach) it is apparent that the concluding sentence is an outcome, product or result of the Minister’s assessment of the particular facts of the case, not a prior test, hurdle or issue which the Minister established for the appellant to pass or fail. In short, the appellant is a particularly large man who, in company, committed an unprovoked and particularly brutal physical assault using his exceptional size to act as an “enforcer” in the assault. Taking into account those factors and that the risk of the appellant re-offending was not negligible, the Minister was satisfied that it is in the national interest to cancel the appellant’s visa. The Minister’s concern that the appellant’s risk of re-offending is not negligible is a product of the Minister’s assessment of the particular crime, the particular circumstances in which it was committed, and the appellant’s particular physical attributes. The Minister has not established as a test, hurdle or issue that the appellant (or any visa holder) must satisfy him that the risk of re-offending is negligible. The Minister at [6]-[7] of his statement of reasons has recorded his conclusion that in the particular circumstances of this appellant, given the particular nature of the crime he committed and the particular situation in which he committed it, taken with his particular physical attributes, and where the risk of re-offending is not negligible, it is in the national interest to cancel the appellant’s visa.

34    The same conclusion applies to the appellant’s complaint about the sentence “I found that I could not be confident that that he would not re-offend” at [27] of the Minister’s statement of reasons. Read in the context of [27] as a whole it is clear that the Minister’s state of satisfaction about the national interest did not involve a test, hurdle or issue that the Minister must be confident that the appellant (or any visa holder) must not re-offend. Again, the Minister’s reasons disclose that  “given the nature and seriousness” of the appellant’s crime and the facts that: – (i) the Minister could not be confident he would not re-offend, and (ii) the consequences of any further offending by the appellant (we interpolate, given his exceptional size) could “be very serious”, the appellant thus represents an unacceptable risk of harm to the Australian community, so that the Minister was satisfied it was in the national interest to cancel the appellant’s visa, as well as that the relevant discretionary considerations outweighed the appellant’s desire to remain in Australia.

35    It is not open to the appellant to parse [27] into one statement about the national interest and other statements about discretionary factors. So much is apparent from the fact that [27] is part of a series of concluding paragraphs beginning with a paragraph, [26], that deals with all of the relevant matters together. In [27] itself the opening sentence alone expressly refers to the national interest. The appellant’s submissions attempted to link the second (and, in the appellant’s case, offending) sentence in [27] to the national interest finding in the first sentence but to discard the balance of [27] as dealing exclusively with discretionary factors and not the national interest. There is no justification for this approach in the language or structure of [27] and it is contrary to the basic principle of giving words their ordinary meaning in context. It is also contrary to the basic principle that an administrative decision-maker’s reasons are not to be scrutinised with an over-zealous eye for error.

36    The procedural fairness argument is also unsustainable. Our conclusion on the first issue means that, in substance, this claim rises no higher than the untenable proposition that the Minister was bound to notify the appellant of the outcome of the assessment before the Minister had conducted the assessment. As noted in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [48] the Minister was not required to give the appellant “a running commentary” on his thought processes. Otherwise, the foundations of the appellant’s submissions cannot be accepted. Insofar as these submissions relied on the Minister’s so-called departure from Direction 41 when dealing with the risk of re-offending, a number of points in answer may be made. First, the letter of 5 July 2011 disclosed that the Minister may but is not bound to have regard to Direction 41 in dealing with discretionary factors. The letter did not represent that the Minister would or even may have regard to Direction 41 in dealing with the national interest question. Second, the appellant was expressly invited by the letter to address the national interest question which the Minister had to consider. Third, Direction 41 itself makes no reference to the national interest and, in terms, its operation is confined to decisions under s 501 of the Migration Act when it was clear to the appellant that the Minister’s power in the present case derived from s 501A(2) of that Act. Fourth, the appellant took the opportunity to make submissions including about the national interest. Fifth, and leaving aside all of the earlier points, Direction 41 does not identify any relevant standard to be applied for the purpose of assessing the risk of re-offending. It identifies factors relevant to that risk but leaves the weighting of that risk at large. The appellant could not have believed, based on Direction 41, that any particular standard would be applied when evaluating this issue.

37    For these reasons the foundation of the appellant’s legitimate expectation claim does not exist and the appellant has not otherwise established any procedural unfairness.

38    The third issue, other than in respect of the leave question, raises more nuanced considerations. As we are satisfied that leave should be granted there is no reason to consider whether leave was in fact required. The issue was raised below in submissions even if not adjudicated upon as a separate review ground. The notion advanced by the Minister that it is possible he might have been able to give relevant evidence about the issue if on notice of it – thereby raising a Suttor v Gundowda Pty Ltd point (Suttor v Gundowda Pty Ltd [1950] ALR 820) – lacks merit. It is difficult to imagine what relevant and admissible evidence the Minister could now give about a decision made on 13 September 2011 for which reasons were given at the time.

39    To resolve this issue it is worth referring again to the reasons of the Full Court in Madafferi in respect of this issue. The Full Court said:

[86] The Minister in considering the national interest under s501A(2) may properly have regard to the circumstances which underpin the failure to satisfy him that an applicant for a visa passes the character test. There may be circumstances in which the seriousness of a person's criminal history will be sufficient to satisfy the Minister that the refusal of a visa is in the national interest. In Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 409 the Full Court referred to the seriousness of the visa holder's crimes in that case and said:

"It is the seriousness of that conduct which has to be assessed in the national interest. Obviously enough, the national interest dictates that people who engage in sufficiently serious crime should not have the benefits of an Australian visa."

While, as Gaudron J observed in Re Patterson; Ex parte Taylor at 675 [Re Patterson; Ex parte Taylor (2001) 207 CLR 391; (2001) 182 ALR 657; [2001] HCA 51] this does not mean that convictions which result in a person failing the character test are themselves sufficient to entitle the Minister to determine that it is in the national interest that a visa be cancelled convictions of a sufficiently serious character can lead to that conclusion. After observing that the terms of s501(3), under consideration in that case, made it clear that national interest considerations are separate and distinct from the question whether or not a person passes the character test her Honour said:

"That is not to say that the matters which result in a person failing the character test may not also provide the foundation for the minister's satisfaction that it is in the national interest that that person's visa be cancelled."

[87] Her Honour went on (at 676):

"To say that the conduct which leads a person to fail the character test may also provide the foundation for the minister's satisfaction that it is in the national interest to cancel his or her visa is not to say that it will always do so. Both issues must be considered separately. And where the same conduct is relied upon for both purposes, there must be something in the nature, or the seriousness of that conduct, or in the circumstances surrounding it to found a satisfaction that it is in the national interest to cancel the visa of the person concerned."

[88] Kirby J in the same case accepted that the words "in the national interest" could not be given a confined meaning (at 742). As he said:

"However broad may be the jurisdiction conferred by the constitutional writs, they do not permit a court to substitute for the satisfaction of the minister, provided by the Act of Parliament, the satisfaction of judges who are not accountable to the Parliament or the people in the same way as the minister."

Nevertheless, in the particular case, he found it impossible to regard the matters placed before the Minister as sufficient to sustain a reasonable or rational conclusion that the cancellation of the prosecutor's visa was "in the national interest". His Honour set a high threshold for the enlivening of the national interest criterion by reference to the Minister's indication in the relevant second reading speech discussing the proposed power to be conferred upon him by s501 that:

"... in exceptional or emergency circumstances, the minister, acting personally will be given powers to act decisively on matters of visa refusal, cancellation and the removal of non-citizens."

[89] With respect to that view, the bar of national interest does not seem to be set that high by the words of the Act which must be the primary guide to legislative intention. The question of what is or is not in the national interest is an evaluative one and is entrusted by the legislature to the Minister to determine according to his satisfaction which must nevertheless be obtained "reasonably" - Re Patterson; Ex parte Taylor at 698 (Gummow and Hayne JJ, Gleeson CJ agreeing). Callinan J agreed with Kirby J that the constitutional writs do not entitle the judges to substitute for the satisfaction of the Minister the satisfaction of the judges (755).

40    It is apparent from this discussion that: – (i) the Minister must give separate consideration to the national interest, (ii) in so doing, the Minister may properly have regard to the circumstances which underpin the failure to satisfy him that the applicant or visa holder passes the character test, (iii) the matters which result in a person failing the character test may also properly provide the foundation for the Minister's satisfaction that it is in the national interest that that person's visa be cancelled but by no means necessarily do so, and (iv) however, “where the same conduct is relied upon for both purposes, there must be something in the nature, or the seriousness of that conduct, or in the circumstances surrounding it to found a satisfaction that it is in the national interest to cancel the visa of the person concerned”.

41    The appellant described this last matter as a requirement for “something more” (adopting the language of Kirby J in Re Patterson; Ex parte Taylor at [336]). The appellant submitted that the appellant’s crime was purely local or personal in character and that the Minister had not grappled in any way with the concept of the national interest operating at a national rather than local or personal level.

42    The submission, it must be said, is not without some persuasive force. The “national interest” is not to be equated to the “public interest” (see the discussion in Wong v Minister for Immigration and Multicultural Affairs [2002] FCA 959 at [33]-[34]). Nevertheless, the problem for the appellant in the present case is that the Minister asked and answered the correct question (am I satisfied that the cancellation of the appellant’s visa is in the national interest?) in terms. The Minister has thus avowed, through his statement of reasons, that he asked and answered the correct question at the correct level of abstraction – the national interest. This is not the end of the matter. The Minister’s avowal need not be taken at face value. It is thus necessary to consider whether anything indicates that the Minister did not in substance approach the question as required by law despite the orthodox terms in which his statement of reasons identifies the relevant question. In performing this task it must be recalled that the question has been entrusted to the Minister alone and can be answered only after an evaluative process about which reasonable minds may differ. After what has elsewhere and in other contexts been described as “anxious consideration” we are unable to detect error in the Minister’s consideration of the national interest.

43    We do not accept that when answering the question whether he was satisfied that cancellation of the appellant’s visa is in the national interest the Minister considered only whether the risk of the appellant re-offending was negligible. We considered and rejected that approach to the Minister’s statement of reasons above. We consider that in answering the question of the national interest the Minister considered (at least): – (i) the nature and seriousness of the appellant’s crime, (ii) the circumstances in which the crime was committed, (iii) the appellant’s role in the crime facilitated by the appellant’s exceptional size, (iv) the risk of the appellant re-offending, (v) the potential consequences if the appellant did re-offend in a similar manner to the crime, and (vi) the protection of the Australian community having regard to each of these factors. Once this is recognised, it is apparent that this is not a case in which the Minister merely equated the fact that the appellant failed the character test by reason of having committed an offence of a particular character with it being in the national interest to cancel the appellant’s visa. The Minister gave differential consideration to the question whether he was satisfied that cancellation of the appellant’s visa is in the national interest and, having regard to the factors specified, concluded at the requisite level of abstraction (by reference to the national interest) that he was satisfied as required. No error is exposed in the Minister’s consideration.

conclusion

44    For the reasons we have given the appeal must be dismissed with costs.

Associate:

Dated:    23 March 2012