FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v Makasa [2012] FCAFC 166

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the First Respondent’s costs.

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

REASONS FOR JUDGMENT

Introduction

1    Mr Likumbo Makasa is a citizen of Zambia who, until recently, held a permanent resident visa under the Migration Act 1958 (Cth) (the Act) entitling him to remain in Australia as a lawful non-citizen. In July 2011, following upon Mr Makasa’s conviction and imprisonment for the crime of unlawful sexual intercourse with a 15 year old girl, a delegate of the Minister for Immigration exercised the power under s 501(2) to cancel Mr Makasa’s visa.

2    The delegate’s decision was affirmed by the Administrative Appeals Tribunal on 18 October 2011 but on 2 April 2012 the primary judge (Perram J) quashed the order of the Tribunal and issued writs of certiorari and mandamus. His Honour did so on the ground that the Tribunal’s decision was affected by jurisdictional error because it misapplied the rules which governed the exercise of the power to cancel the visa.

3    The governing rules for the exercise of the power were contained in a document entitled “Direction No 41 – Visa refusal and cancellation under s 501” (Direction 41). Direction 41 contains directions to the decision-maker on the application of the character test under s 501(6) of the Act, as well as directions in relation to considerations that are relevant to determining whether it is appropriate to exercise the discretion to cancel a visa.

4    No question arose as to whether Mr Makasa passed the character test. This was because, in 2009, he was sentenced to three concurrent terms of imprisonment for 2 years on three counts of unlawful sexual intercourse with the young girl referred to above: see ss 501(6)(a) and 501(7)(c) of the Act.

5    The jurisdictional error in the Tribunal’s decision identified by the primary judge was in its construction and application of the considerations stated in Direction 41 for determining whether it was appropriate to exercise the discretion.

6    The consideration which the primary judge determined as being so affected was the protection of the Australian community from serious criminal conduct and, in particular, the factors relevant to assessing the level of the risk of harm to the community referred to in para 10.1(2) of Direction 41. These factors are stated in that para to include:

    the seriousness and nature of the relevant conduct; and

    the risk that the conduct may be repeated.

7    The principal issue which arose before the primary judge was what is the conduct to which para 10.1(2) of Direction 41 refers.

8    This issue arose because of the approach taken by the Tribunal. In its careful and detailed reasons, the Tribunal took into account not only the three counts of unlawful sexual intercourse for which Mr Makasa was convicted and sentenced, but also his involvement in an aggravated sexual assault of the same young girl in relation to which he was charged and convicted, but ultimately aquitted on appeal.

9    The Tribunal made an express finding that it did not regard the evidence of the events which occurred as justifying a conclusion that Mr Makasa had engaged in the more serious aggravated sexual assault which was the subject of the charges that were ultimately dismissed. But the Tribunal went on to say at [121] of its reasons that the relevant considerations under para 10.1(2) include “reasonable apprehensions” about a person’s involvement in serious criminal conduct. It found that there was “a reasonable basis for apprehension” that Mr Makasa was involved in that conduct and assessed the risk of harm to the Australian community on that basis.

10    The primary judge was of the view, at [8] and [9] of his reasons, that the approach taken by the Tribunal constituted jurisdictional error because the conduct to which para 10.1(2) refers is conduct that has been found to have occurred, rather than conduct which is merely apprehended to have occurred.

The legislative scheme

11    The power to cancel a visa on character grounds is conferred upon the Minister in s 501(2) of the Act. It provides:

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.

These conditions, stated in paragraphs (a) and (b) of this subsection, comprise the jurisdictional facts which must be satisfied so as to enliven the discretion conferred upon the Minister.

12    A person does not pass the character test if any of the circumstances stated in s 501(6) (a) to (d) applies. This subsection provides:

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.

13    As is apparent, with the exception of s 501(6)(d), each of the four sets of circumstances spelled out in those paragraphs consists of a past event.

14    Most notably, the first circumstance or event is that which is stated in s 501(6)(a), namely that the person has a substantial criminal record. The existence of such a record is plainly a matter of fact consisting of one or more past events.

15    This is spelled out even more clearly in the definition of a substantial criminal record in s 501(7). This subsection provides:

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.

16    Each of the factual matters stated in paras (a) to (e) of that subsection is a past event. In the present case the particular factual matter which applied was that Mr Makasa had been sentenced to a term of imprisonment of more than 12 months for the crime of unlawful sexual intercourse, being intercourse with a girl who had not reached the age of consent.

17    The Minister may delegate the visa cancellation power under s 496(1) of the Act. The delegate is subject to the directions of the Minister in the exercise of that power: see s 496(1A).

18    The power to give directions as to the exercise of the visa cancellation power is conferred upon the Minister in wide terms in s 499(1). The Minister may give directions to the delegate and the Tribunal about the performance of the function of visa cancellation and about the exercise of the power to cancel a visa. The decision-maker is bound to comply with such directions: see s 499(2A).

Direction 41

19    Direction 41 commences in Part 1 with a number of preliminary matters including a preamble which states the Government’s objectives under s 501 and general guidance to decision-makers.

20    The objectives are stated, relevantly, in para 5.1(2) as being to protect the Australian community:

from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.

21    The general guidance given in para 5.2 includes the statement in para 5.2(2) that in reaching a decision whether to cancel a visa, a decision-maker needs to consider the nature of any harm that the person may cause to the Australian community and the risk of that harm occurring.

22    Part 2 of Direction 41 is divided into two sub-parts that reflect the two stage nature of the decision making process under s 501(2). The first stage is the application of the character test, the directions for which are set out in Part A. The second stage is the exercise of the discretion whether or not to cancel the visa in the specific circumstances of the case, the directions for which are set out in Part B.

23    The second stage only arises if the jurisdictional facts are satisfied, that is to say, if the person in question does not satisfy the decision-maker that he or she passes the character test. The directions to the decision-maker as the considerations that are relevant to determining whether to exercise the discretion in the particular circumstances of the case are set out in Part B of Part 2 of Direction 41.

24    The relevant considerations are divided into two categories, namely “primary considerations” in para 10 and “other considerations” in para 11. Paragraph 9 requires that decision-makers must take the primary considerations into account in every case, and the other considerations should be taken into account where relevant: see Direction 41, para 9(1).

25    There are four primary considerations stated in para 10(1)(a) to (d). The first, in sub-para (a), is the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence: see Direction 41, para 10(1)(a).

26    The third, in sub-para (c), also refers to criminal activity. It is the length of time that the person has been ordinarily resident in Australia “prior to engaging in criminal activity or other relevant conduct.”

27    The primary considerations set out in sub-paras (b) and (d) are expressed in terms which are not confined to past conduct. They are, whether the person was a minor when he or she began living here, and relevant international obligations stated in a number of Conventions to which Australia is a party.

28    Further explanation of each of the primary considerations is then given in the succeeding sub-paragraphs of para 10 of Direction 41. Mr Beckett, who appeared for Mr Makasa, aptly described the structure of this part of Direction 41 as “telescopic”. That is to say, each of the primary considerations is given additional content and explanation as the reader works his or her way through Direction 41.

29    Thus, para 10.1 spells out in more detail the factors relevant to assessing the level of risk of harm to the Australian community from the person’s continued stay in Australia. Paragraph 10.1(1) states that consideration is to be given to the Government’s objectives set out in para 5 of Direction 41. Importantly to this case, the factors relevant to assessing the risk are stated in para 10.1(2) to include:

(a)    the seriousness and nature of the relevant conduct; and

(b)    the risk that the conduct may be repeated.

Each of the factors stated in para 10.1(2)(a) and (b) are then discussed in more detail in sub-paras 10.1.1 and 10.1.2.

30    The seriousness and nature of the conduct is discussed in sub-para 10.1.1. That sub-para commences in 10.1.1(1) by stating that crimes involving violence or threats of violence, are of special concern, particularly against vulnerable persons such as minors.

31    Sub-paragraph 10.1.1(2) sets out examples of offences and conduct that are considered serious. They include offences perpetrated against a child, particularly sexually-based offences. All of the examples are stated by reference to a description of past criminal conduct. There is no reference to a reasonable apprehension of the occurrence of such conduct.

32    The same comments may be made about sub-paras 10.1.1(3) which direct the decision-maker to take into account in determining the seriousness of the conduct, the sentence imposed, the number and nature of the offences, the period between the offences and the time elapsed since the most recent offence. That is, again there is no reference to a reasonable apprehension of the occurrence of such conduct.

33    The emphasis upon past conduct, rather than a reasonable apprehension that past conduct had occurred, is also reinforced in the list of factors to be considered under sub-para 10.1.1(4). The factors include judicial comments and pre-sentence reports.

34    The factors relevant to assessment of the risk that the conduct may be repeated are set out in sub-para 10.1.2. That sub-para commences by stating that the person’s “previous general conduct” and the person’s “total criminal history” are to be considered as highly relevant to assessing the risk of the person re-offending: see sub-para 10.1.2(1).

35    Sub-paragraph 10.1.2 then goes on to list the factors to be considered as particularly relevant to assessment of the risk that “the conduct” may be repeated. They include a recent history of convictions, evidence of rehabilitation and evidence of any breach of judicial orders: see para 10.1.2(2). These factors also appear to be based upon the existence of past criminal conduct rather than an apprehension that it occurred.

36    Paragraph 11 deals with “other considerations”. As we have said, these may be relevant but they are not primary considerations. If relevant, these other considerations must be considered, although generally they should be given less weight than the primary considerations: see para 11(1) and (2). These other considerations are stated in para 11(3) to include family ties and the nature and extent of any relationships.

The Tribunal’s Decision

37    The Tribunal’s reasons commence by setting out the details of the offences with which Mr Makasa was charged, the results of the jury verdicts and the result of his appeal.

38    The reasons explain that Mr Makasa was charged with eight principal offences and eight alternative offences arising from complaints made by the young girl as to events which occurred on the evening of 30 August 2006 and during the day on 31 August 2006. The principal charges included aggravated sexual assault of the young girl on the evening of 30 August 2006, which involved allegations of a joint enterprise between Mr Makasa and two other persons to have non-consensual sexual intercourse with the girl. The alternative charges related to multiple counts of sexual intercourse by Mr Makasa with the young girl during 31 August 2006, which was unlawful because she was under the age of consent. All of the events were alleged to have occurred in Mr Makasa’s bedroom at a house that he shared with other men.

39    As the Tribunal pointed out at [8], the most material difference between the principal charges and the alternative charges was that the girl’s lack of consent was an essential element of the charges of aggravated assault. Consent was irrelevant to the alternative charges because of the girl’s age.

40    Mr Makasa denied any knowledge of or involvement in the alleged aggravated sexual assault on 30 August 2006. He conceded to having had sex with the young girl on three occassions on 31 August 2006 but in his defence he said that she consented and he argued that he had an honest and reasonable belief that she had reached the age of consent.

41    A jury found Mr Makasa guilty of one charge of aggravated sexual assault in relation to the events of the evening on 30 August 2006, and also guilty of three counts of unlawful sexual intercourse on 31 August 2006.

42    Mr Makasa did not appeal against the guilty verdicts on the charges of unlawful sexual intercourse but he did appeal against his conviction on the charge of aggravated sexual assault. The Court of Criminal Appeal of New South Wales, in a majority decision, directed an acquittal on that charge.

43    The Tribunal applied the principle stated by a Full Court of the Federal Court in Ngaronoa v Minister for Immigration and Citizenship (2007) 244 ALR 119 that an acquittal on a criminal charge does not immunise the conduct from consideration by the Minister in exercising the discretion to cancel a visa.

44    The Tribunal then proceeded to give careful, but “restrained”, analysis to the evidence relating to the events in which Mr Makasa was involved. It considered the evidence at the trial, the remarks of the sentencing judge as well as Mr Makasa’s evidence in the Tribunal. It also considered the observations of the majority and the dissenting judge in the Court of Criminal Appeal.

45    Ultimately, the Tribunal concluded at [95] that the evidence did not justify a conclusion that Mr Makasa had engaged in intercourse with the girl on the evening of 30 August 2006 or that he did so without her consent.

46    The Tribunal then turned to the question of the primary consideration of the protection of the Australian community and, in particular, the risk that Mr Makasa’s conduct may be repeated.

47    It dealt in some detail with the offences of unlawful sexual intercourse on 31 August 2006, of which Mr Makasa was convicted, before turning to consider the events on the prior evening of 30 August 2006. These were the events upon which Mr Makasa was acquitted by the Court of Criminal Appeal, and in respect of which the Tribunal stated that it was not satisfied as to his culpability.

48    However, when it came to consider the primary consideration of protection of the Australian community, the Tribunal said at [120] that Direction 41 involves an “impressionistic assessment” of the risk of harmful conduct in the future. The Tribunal then said that the considerations relevant to the assessment of that risk include the person’s “general conduct”, as stated in para 10.1.2(1) of Direction 41, and that these considerations are not confined to instances of proven criminality.

49    The Tribunal said of these considerations:

Neither are they limited, despite the use of terms such as “repeated” and”re-offending” (see Ministerial Direction 41 cl 10.12(b) & 10.1.2), to apprehended repetition of precisely the same kind of offences as those involved in the person’s convictions. They include any apprehended harmful conduct in relation to which there is a rational and reasonable basis for apprehending a relevant degree of risk of the person’s causal involvement. This kind of assessment is not amenable to clear and cogent evidentiary proof. It is a matter of impression.

50    The Tribunal then returned to what it called the contentious evidence of what took place in Mr Makasa’s bedroom on 30 August 2006. It said at [121]:

But we do not consider that the relevant considerations in assessing the risk of harmful conduct are confined to the necessary effect of the contentious evidence. We consider that the relevant considerations include reasonable apprehensions about the extent of the person’s involvement in serious criminal conduct. And the contentious evidence about the events of the evening of 30 August 2006 certainly provide a reasonable basis for apprehensions that Mr Makasa not only had sexual intercourse with the girl that evening, but also encouraged his co-accused to have intercourse with her as well.

51    The Tribunal was of the view that its approach did not elevate mere accusations to an unacceptable basis for exercise of the power to cancel Mr Makasa’s visa. It said at [122]:

We consider it is necessary to approach the exercise of the visa cancellation power on the basis of a real risk that Mr Makasa was culpably involved in the sexual intercourse that occurred on that night. We also consider that there is a real risk Mr Makasa’s culpability involved intercourse with a non consenting young girl and that it also involved intercourse in circumstances where Mr Makasa did not honestly and reasonably believe that the girl was at least 16 years of age.

52    The Tribunal’s discussion of the issue concluded with the following remarks in [123]:

Reasonable apprehension of what occurred on the evening of 30 August 2006 does not necessarily translate into unacceptable risk of future harmful conduct by the person concerned. But in the present case the reasonably apprehended conduct is that of serious co-operative criminality against a young girl. And, in Mr Makasa’s case it was followed by repeated instances of unlawful sexual intercourse the following day.

The primary judge’s reasons

53    The primary judge succinctly stated the error which he identified in the Tribunal’s decision. His Honour said that the conduct to which sub-paras (a) and (b) of para 10.1(2) is directed in assessing the risk of harm to the Australian community is conduct which has been found to have occurred. In his Honour’s view it did not extend to conduct about which there is merely an apprehension, reasonable or otherwise, that the conduct has occurred.

54    His Honour pointed, in particular to the fact that para 10.1(2)(b) is concerned with the risk that the conduct may be “repeated”, to support his view that the conduct must be “an event of original occurrence.”

55    Thus, the primary judge considered that the Tribunal had fallen into jurisdictional error by taking into account conduct about which it had expressly declined to make findings of culpability and in respect of which it had merely a reasonable apprehension about Mr Makasa’s involvement.

Discussion

56    The question which arises is whether, in assessing the level of risk of harm to the Australian community, the Tribunal exceeded its jurisdiction by taking into account a reasonable apprehension that Mr Makasa was culpably involved in serious criminal conduct on the evening of 30 August 2006. The question is thrown into stark relief by the fact that the Tribunal was not prepared to find that Mr Makasa was actually involved in that conduct.

57    The primary judge answered that question by holding that although the Tribunal was bound by Direction 41 to take into account the factors referred to in para 10.1(2), the only conduct which is engaged by that paragraph is conduct which is found to have actually occurred. On that approach, conduct which is not found to have occurred, but which is merely apprehended to have occurred, is irrelevant to the exercise of the discretion to cancel a visa.

58    The correctness of his Honour’s approach is the only real question which arises in the appeal. It is to be determined by reference to the scope of the power conferred on the Minister under s 501(2) to cancel a visa, having regard to the terms of the direction given to decision-makers under s 499(1) and Direction 41 with respect to the exercise of that power.

59    Section 501(2) confers a discretionary power on the Minister to cancel the visa of a non-citizen if the jurisdictional facts stated in the two paragraphs of that subsection are satisfied. In short, the discretion arises where the person does not satisfy the Minister that he or she passes the character test. The discretion conferred on the Minister is unconfined in its terms. Thus, any limitations on the scope of the power must be derived from the subject matter, scope and purpose of the enactment: Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 at [67], citing inter alia, Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J.

60    The Minister’s power to give directions under s 499(1) is also expressed in wide terms. It is a power to give directions about the performance of the decision-maker’s functions and the exercise of the powers. But directions such as those contained in Direction 41 must be construed in light of the scope of the visa cancellation power, having regard also to any limitations inherent in the subject matter, scope and purpose of that power.

61    Section 501(2) was enacted under the aliens power contained in s 51(xix) of the Constitution. It is a valid exercise of power because it is non-punitive in nature and, instead, has at its heart, the protection of the Australian community from the risk of serious criminal activity. For this reason, s 501(2) does not offend Ch III of the Constitution. See the propositions derived from the authorities in Djalic at [66].

62    Moreover, the discussion of the authorities by the Full Court in Djalic at [68] – [72], including their Honours’ reference to an earlier form of Direction 41, makes it clear that the purpose of s 501 is to protect the Australian community from persons who have committed “or might commit” serious crimes if they remain in Australia. The use of the hypothetical “might” should be read in the entire context of their Honours’ observations which are summed up in the concluding words of [71], namely that s 501:

... is designed to protect the community from criminal or other undesirable conduct and to permit the Minister to give effect to what might loosely be described as community expectations that perpetrators of such conduct, should not be permitted to remain in Australia.

63    In coming to that view, the Full Court in Djalic drew upon the observations of another Full Court in Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65. In Akpata the Court set out portions of the predecessor of Direction 41, thereby suggesting that the Court was of the view that it contained a fair statement of the principal purpose of the visa cancellation power in s 501.

64    The Court in Akpata said at [105], and we respectfully agree, that:

The definition of a person passing the character test in s 501(6) shows that Parliament intended that persons who have been convicted of relatively serious crime; associate with criminals; have a history including an immediate history of criminal conduct or general conduct indicating bad character;  are a significant risk of engaging in criminal conduct or undesirable conduct (s 501(6)(d)), should not be permitted to travel to or remain in Australia.  Shortly put, persons who have committed or are likely to commit criminal or other like conduct should not be permitted to travel to or remain in Australia.  Because the purpose is to exclude those persons, the matters that are relevant to the exercise of the Minister’s discretion will include any fact or circumstance which would suggest that a person of otherwise bad character (as it is defined in the Act) should be allowed to travel to or remain in Australia. 

(emphasis added)

65    These facts and circumstances are the considerations that are relevant to determining whether it is appropriate to exercise the discretion in the specific circumstances of the case. It is these considerations which the Minister has directed the decision-maker to take into account as either primary considerations or other considerations: see Part 2, para 2 (Part B) and para 9 of Direction 41.

66    The first of the primary considerations is stated in very broad terms in para 10(1)(a) as the protection of the Australian community from serious criminal or other harmful conduct.

67    Paragraph 10.1, together with sub-paras 10.1.1 and 10.1.2, then set out the relevant factors which the decision-maker must take into account in assessing the primary consideration of the protection of the Australian community. The factors identified in para 10.1 and the succeeding sub-paras are not primary considerations in themselves but they are considerations which will need to be taken into account by the decision-maker in the course of his or her deliberation: Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390 at [18] per Rares J.

68    It may be accepted that the factors stated in para 10.1 and the succeeding sub-paras are not an exhaustive statement of the relevant factors: Rosson at [19]; Shi v Minister for Immigration and Citizenship [2011] FCA 935 at [9] per Perram J. However, the question of whether an apprehension that a person may have committed a serious crime or other harmful conduct is a relevant factor may be gleaned from the terms of para 10.1 and the succeeding sub-paras as well as what we have said about the objectives of s 501 and its constitutional underpinnings.

69    In our view, for the reasons set out below, a reasonable apprehension that the person has committed a serious crime or other harmful conduct is not a relevant factor. The primary judge was plainly correct in coming to the view that the conduct with which sub-paras (a) and (b) of para 10.1(2) is concerned is past conduct which is found to have actually occurred. This follows, in particular from the fact that the conduct which is the subject of those sub-paras is conduct that may be “repeated”. As the primary judge said, this presupposes that the conduct has actually occurred.

70    However, the question of whether a “reasonable apprehension” that conduct has occurred is a relevant factor turns upon a consideration of para 10 of Direction 41 in its full context.

71    Although the discretion conferred under s 501(2) is unconfined in its terms, the Minister has stated the primary and other considerations which the decision-maker must take into account in considerable detail. Nowhere in that detailed statement is there any reference to a “reasonable apprehension” that the person has committed certain conduct as a factor to be taken into account. Indeed, the consideration of such a factor does not sit easily with the detailed statement set out in paras 10.1, 10.1.1 and 10.1.2.

72    It is clear from those paragraphs that the Minister turned his mind to the nature of the task to be undertaken by the decision-maker in determining the primary consideration of the protection of the Australian community.

73    It is true as Counsel for the Minister emphasised that the factors stated in para 10.1(2) are inclusive and that, as was stated in Rosson and Shi, the matters set out in the abovementioned paras are not an exhaustive statement. Nevertheless, all of the matters set out in the Direction assume the existence of actual criminal or other harmful conduct.

74    This may be seen in the list of offences stated in sub-paras 10.1.1(1) and 10.1.1(2) and the requirement to have regard to the sentences imposed as stated in sub-para 10.1.1(3). Also, factors such as judicial comments and mitigating factors in sub-para 10.1.1(4) all rest upon an assumption that the conduct in question has actually been found to have taken place.

75    So too, the person’s previous general conduct and criminal history referred to in sub-para 10.1.2 is concerned with actual past conduct, not conduct which may be apprehended to have occurred.

76    Indeed, one may ask how that factor could be sensibly applied and how a visa holder, albeit one who has failed the character test, could answer a case that he or she is reasonably apprehended to have engaged in other serious criminal conduct or other harmful conduct. The provisions of Direction 41 give no guidance to the decision maker as to what he or she must take into account in determining such a factor. In light of the detailed exposition of the factors relevant to the assessment of the primary considerations, in our view the “reasonable apprehension” factor does not form part of Direction 41 and cannot be taken into account in the exercise of the discretion to cancel a visa.

77    This approach is supported by well established authority. The proper construction of a statutory provision may show that a particular factor is a fundamental matter or a “focal point” for consideration by a decision-maker. The statutory provision may also show that a particular matter to which the decision-maker may have regard is not fundamental to the decision-making process: see Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 at [60] per Stone, Foster and Nicholas JJ citing the observations of Mason J in R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 338 and R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329; see also Zhang v Canterbury City Council (2001) 51 NSWLR 589 at [71] – [73].

78    It follows in our view that a proper approach to construction of the statutory provision may show that a matter which is not spelled out as relevant to the focal point is not a matter which is to be taken into account, albeit that the relevant factors are not stated exhaustively. That is the correct approach to the present matter.

79    In short, if the Minister’s argument is correct, once the discretion to cancel a visa is enlivened, the decision-maker may exercise the discretion in a relatively unconstrained manner upon the basis of a mere suspicion or apprehension (albeit a reasonable one) that the person has engaged in criminal or other harmful conduct. This seems to us to be inconsistent with the detailed scheme of Direction 41 which requires the decision-maker to assess the primary consideration of the protection of the Australian community by reference to a series of specific matters which are described in some detail by reference to identified past conduct.

80    Of course, some scope must be given to the non-exhaustive nature of the factors identified in para 10.1(2)(a) and (b). But that issue of construction was correctly answered by the primary judge at [12] of his reasons. As his Honour said, the non-exhaustive statement of the factors in those paragraphs does not permit an examination of matters ranging beyond identified past conduct, in particular an apprehension that such conduct may have occurred. Rather, it permits an assessment of identified past conduct from perspectives other than its seriousness and the risk that it may be repeated.

Other arguments

81    The Minister also relied upon the provisions of para 10.1(1) which require the decision-maker to consider the Government’s objectives stated in Part 1, para 5 of Direction 41. In particular, para 5.1(2) states that the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct.

82    In our opinion, the objective stated in this paragraph is not to be read in the broad manner that was suggested by the Minister. Rather, it seems to us that the words “unacceptable risk” and “as a result of” indicate that the objective is one of protecting the community from risks of future criminal activity or other serious conduct. It says nothing about the way in which the assessment of the risks is to be determined. In particular, it does not suggest that the risks are to be determined by an impressionistic assessment founded upon an apprehension as to whether past conduct has occurred.

83    Instead, para 5 goes on to state in para 5.2 that to facilitate these objectives, Direction 41 provides directions to decision-makers with respect to inter alia the exercise of the visa cancellation power. Whilst para 5.2(2) states that in reaching a decision, a decision-maker needs to take into account the nature of any harm the person may cause and the risk of that harm occurring, the specific details of the manner in which these considerations are to be determined is found in Part B. We have set out above our view as to why those details exclude, as a relevant factor in the assessment of the risk, an apprehension that the person may have engaged in past conduct.

84    Nor does the requirement in para 10.1.2 that the decision-maker consider the person’s “previous general conduct” assist the Minister’s argument as to the proper construction of the scope of the discretion. Indeed, in our view, those words support the approach adopted by the primary judge. This is because “previous general conduct” and “total criminal history”, as well as the factors stated in para 10.1.2, all point to matters of actual past conduct, not an apprehension that such conduct has occurred.

85    It is true, as the Minister submitted, that some of the primary considerations stated in para 10(1) involve considerations which are not limited to past conduct. This may be seen in relation to whether the person was a minor when he or she began living in Australia, and the terms of relevant international obligations: see 10(1)(b) and (d).

86    However, it does not follow that the assessment of the overarching consideration of protection of the Australian community permits regard to matters which are not based upon actual past conduct. This is because of the detailed references in paras 10.1, 10.1.1 and 10.1.2 which are based upon the existence of such conduct.

87    Finally, the Minister submitted that there is no reason why a decision-maker may not assess a risk upon the basis of a possibility without finding on the balance of probabilities that an event has happened or will happen in the future. The Minister relied, by analogy, upon the decision of the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572-574, 576; see also Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 429.

88    But in our view no such analogy may be drawn. The decisions to which the Minister referred were concerned with the requirement imposed upon the decision-maker under the terms of s 36 of the Act and Article 1A of the Convention relating to the Status of Refugees, done at Geneva on 28 July 1951. That Article required the decision-maker to determine whether a person has a well-founded fear of persecution on the grounds stated in the Convention. A fear is “well-founded” when there is a real substantial basis for it, even if there is less than a 50% chance that it will eventuate: see Guo at 572. That assessment is made in an entirely different statutory context from the present. It has no application to the proper construction of the terms of Direction 41.

Notice of Contention

89    Mr Makasa filed a notice of contention to the effect that the Tribunal took into account an irrelevant consideration, namely speculation and suspicion as to whether Mr Makasa had engaged in an aggravated sexual assault on 30 August 2006.

90    In light of our reasons for dismissing the appeal, it is unnecessary to consider the notice of contention.

Conclusion

91    The appeal must be dismissed with costs.

Associate:

Dated:    22 November 2012