FEDERAL COURT OF AUSTRALIA

Nweke v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 79

THE COURT ORDERS THAT:

1.    The appeal be dismissed, with costs.

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

REASONS FOR JUDGMENT

Introduction

1    This appeal concerns whether or not the Minister took into account as a primary consideration the best interests of the four children of the appellant in deciding, under s 501A(2) of the Migration Act 1958 (Cth), to set aside the decision of the Administrative Appeals Tribunal not to cancel the appellant’s visa and to cancel the visa himself. The Minister’s decision was made on 12 December 2012. The appeal is from the judgment of the primary judge given on 17 May 2013.

2    Section 501A relevantly provides:

(1) This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision (the original decision):

(c)    not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or

(d)    not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;

whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test.

Action by Minister—natural justice applies

(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.

Background

3    The primary judge was exercising original jurisdiction under s 476A(1)(c) of the Migration Act 1958, that is, jurisdiction by virtue of the migration decision being a privative clause decision, or purported privative clause decision, made personally by the Minister under s 501A.

4    The procedural history of the matter is set out in the reasons of the primary judge, Cowdroy J, as follows.

5    This is the second time the Minister has made a decision to set aside the decision of the Administrative Appeals Tribunal not to cancel the appellant’s visa and to cancel the visa himself, having previously done so on 5 September 2011. That earlier decision was quashed by this Court on 23 March 2012, when Jagot J found that the Minister had failed to provide procedural fairness to the appellant and had made a jurisdictional error: see Nweke v Minister for Immigration and Citizenship (2012) 126 ALD 501.

6    The primary judge also set out the relevant facts as follows:

The applicant is a 38 year old Nigerian citizen. He arrived in Australia on 18 September 2000, and on 11 April 2003 was granted a permanent residence visa as the spouse of an Australian citizen. The applicant is the father of four children, all of whom are Australian citizens by birth.

On 9 March 2007, the applicant was convicted in the District Court of New South Wales of aiding and abetting the importation of a trafficable quantity of cocaine. On 5 November 2007, he was sentenced to 10 years imprisonment with a non-parole period of six and a half years. Due to time already spent in incarceration, the applicant’s non-parole period ended on 30 September 2011.

On 21 April 2011, just over five months prior to when the applicant’s non-parole period was due to end, a delegate of the Minister cancelled the applicant’s visa. The delegate found that the applicant did not satisfy the character test due to his substantial criminal record (‘the delegate’s decision’).

Upon an application to review the delegate’s decision, the Administrative Appeals Tribunal (‘the AAT’) set aside the delegate’s decision on 12 July 2011.

On 5 September 2011, the Minister set aside the decision of the AAT and cancelled the applicant’s visa pursuant to s 501A(2). Such decision was quashed by this Court on 23 March 2012.

On 12 December 2012, the Minister again decided to cancel the applicant’s visa under s 501A(2) of the Act. The applicant challenges the Minister’s decision.

We have corrected an immaterial error in stating Mr Nweke’s conviction. The error is immaterial because the Minister in his decision stated the correct offence. We have also updated the appellant’s age.

The Minister’s decision

7    Against that background, we outline the Minister’s decision, the reasons he gave for it and the appellant’s present challenge.

8    The Minister provided a statement of reasons dated 12 December 2012. He said that:

I reasonably suspect that Mr NWEKE does not pass the character test and Mr NWEKE 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 NWEKE’s visa. I hereby cancel Mr NWEKE’s Class BS Subclass 801 Spouse visa. A Statement of Reasons for my decision is attached.

9    Having considered the character test and found that Mr Nweke did not pass the character test and that he had not satisfied the Minister that he passed the character test, the Minister went on to consider the national interest. He concluded that the cancellation of the visa was in the national interest. Thus the Minister had considered each of the pre-requisites in s 501A(2)(c), (d) and (e).

10    The Minister then went on to consider whether to exercise his discretion to set aside the Tribunal’s decision and to cancel Mr Nweke’s visa.

11    The relevant headings of the statement of reasons were: “Protection of Australian Community”; “Ties to Australia”; “Best Interests of Minor Children in Australia”; “International Obligations”; and “Other Considerations”.

12    Under the first of these headings, “Protection of Australian Community”, the Minister considered Mr Nweke’s offence of aiding and abetting the importation of a trafficable quantity of cocaine and the substantial sentence of 10 years imprisonment which he received. The Minister said, under the subheading “Risk to the community should the conduct be repeated”:

17.     If Mr NWEKE were to commit further offending of this nature, I considered the risk of harm to the community would be significant. Drug use has become an entrenched social problem and its use has a destructive effect on those individuals who use it, on their families and it has far reaching ramifications for Australian society. As such, any risk that Mr NWEKE could re-offend, however low, would pose a significant risk to the welfare of the Australian community.

13    Under the second of these headings, “Ties to Australia”, the Minister noted that Mr Nweke was currently in a de facto relationship and he and his partner had recently had a child together. The Minister noted that Mr Nweke had a further three minor children residing in Australia.

14    Under the third of these headings, “Best Interests of Minor Children in Australia”, the Minister considered the four children.

15    He first considered the two older children, then aged eleven and nine, who resided in Western Australia with their mother. The Minister considered that Mr Nweke did not currently play an active parental role in their upbringing. However he found that they would be denied the opportunity to re-establish a relationship with their father in the future and their current physical relationship would be severed. They would be adversely affected if Mr Nweke’s visa was cancelled and their best interests would therefore be served by a decision not to cancel Mr Nweke’s visa.

16    The Minister then considered Mr Nweke’s eight year old son from a previous but different relationship. This son resided with his mother in New South Wales. The Minister found that the son would be denied the opportunity to re-establish a relationship with his father in the future and would be adversely affected if Mr Nweke’s visa was cancelled. Therefore his best interests would be served by a decision not to cancel Mr Nweke’s visa.

17    The Minister then considered the fourth child, born on 26 October 2012. The Minister found that the child would be denied the opportunity to establish a relationship with his father in the future and would be adversely affected if Mr Nweke’s visa was cancelled. Therefore his best interests would be served by a decision not to cancel Mr Nweke’s visa.

18    The Minister’s essential conclusions were as follows:

31.    Having concluded that the cancellation of his visa is in the national interest, I considered whether to exercise my discretion under s501A(2) to cancel his visa. I considered the nature and seriousness of his offending. I noted that, while he has committed only one criminal offence, this offence is very serious. I found that the ten year sentence imposed reflects the seriousness of the offence and considered that offences relating to the importation and trafficking of illicit drugs have destructive consequences on the Australian community, not just drug users and their families.

32.    I also noted that Mr NWEKE arrived in Australia as an adult and spent a relatively short period of three years in Australia before committing this serious offence. I considered that Mr NWEKE has completed a number of educational courses that have enabled him to find employment in the fitness industry. I considered the nature of the relationships between Mr NWEKE and his four young children and found that they would suffer emotional and financial hardship if he was removed. I found that it would be in the children’s best interests for Mr NWEKE’s visa not to be cancelled as they would be denied the opportunity to continue or re-establish a relationship with their father in the future. I have also considered that Mr NWEKE is currently in a de facto relationship and his partner, who recently gave birth to their son, would suffer emotional and financial hardship, if his visa was cancelled.

33.    In reaching my decision, I concluded that it was in the national interest to cancel Mr NWEKE’s visa. Mr NWEKE committed this offence within three years of arriving in Australia. He has resided in Australia for twelve years and was incarcerated for six and a half years. While I noted Mr NWEKE’s progress in jail, his prospects of rehabilitation and that he is currently in the community, I found I could not be satisfied that there was no risk that he would re-offend. Drug-related offending has serious consequences on society and I concluded that even a relatively small risk of him re-offending presented an unacceptable risk of harm to the Australian community. I found that these risks outweighed the best interests of his four children and any other countervailing considerations. I also considered that the Australian community has a lower tolerance for non-citizens who have lived in Australia a relatively short period of time before committing serious crimes.

(Emphasis added)

It may be seen that in these paragraphs the Minister referred back to and repeated a number of the findings he had earlier set out.

The appeal

19    The amended notice of appeal states only two grounds of appeal and abandons the five grounds based on Article 9(1) of the United Nations Convention on the Rights of the Child. The two grounds are that the primary judge, Cowdroy J, erred as follows:

1.    … in failing to find that the Respondent had failed in the exercise of his statutory duty by creating and applying the wrong test when exercising the discretion under s 501A(2); and

2.    … in failing to find that the Respondent had denied the Appellant procedural fairness.

20    Senior Counsel for the appellant accepted that these grounds stood or fell together and that ground 2 captured the necessarily procedural aspects of the failure of the Minister of which the appellant complains.

21    The appellant submitted that rather than treat the best interests of the children as a primary consideration the respondent determined that the risk of offending was “unacceptable” and then weighed a risk already characterised as unacceptable against all other considerations, including the best interests of the children. This, it was submitted, was an erroneous approach. Had the respondent in fact taken the best interests of the children into account, it would have required him to decide whether the significant risk to the welfare of the Australian community he had found to exist was outweighed by the best interests of the children and other considerations including the appellant’s ties to Australia and only then to decide whether the risk was unacceptable so as to outweigh the interests of the children and any other considerations. This failure, it was submitted, of the respondent Minister to in fact treat the best interests of the children as a primary consideration that could be weighed against the risk to the Australian community (as opposed to the conclusion that such a risk was unacceptable), was the application of the wrong test and a denial of procedural fairness.

22    We turn to consider the substance of the grounds.

23    As Gleeson CJ observed in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [14]:

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. I do not think that the Tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him.

This observation was cited with approval in Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 at [43]. It follows that the reasons must be read as a whole.

24    Similarly, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 requires that the reasons of the Minister not be read hypercritically.

25    In context, the word “unacceptable” as used in [33] of the Minister’s statement of reasons should not be construed as an absolute conclusion but as a relative term indicating significance of risk. Otherwise, the reasons of the Minister both before and after his statement that there was “an unacceptable risk of harm to the Australian community” would be largely otiose, in particular the last two sentences of [33] of the Minister’s reasons which we have set out above.

26    It follows, in our view, that the sequence of reasoning of the Minister was not that which the appellant describes and on which he relies. We do not accept that the Minister determined that the risk of offending was “unacceptable” and then purportedly weighed a risk already characterised as unacceptable, in an absolute sense, against all other considerations, including the best interests of the children.

27    In addition, as we have said, we do not accept the contention implicit in the appellant’s submissions that the Minister’s statement that there was “an unacceptable risk of harm to the Australian community” meant that no other considerations, including the best interests of the children, could be weighed against that risk.

28    To the extent that the appellant submitted that the legislation required a particular sequence of reasoning on the part of the decision-maker we reject that submission as having no foundation in the language of the section.

29    In our opinion, the Minister did treat the interests of the children as a primary consideration and thus did not err either by applying the wrong test or by denying to the appellant procedural fairness. It is to be recalled that Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 does not state more than that, procedurally, the interests of the children are a primary consideration, not the only, or the only primary, consideration.

30    The appeal is dismissed with costs.

Associate:

Dated:    19 July 2013