FEDERAL COURT OF AUSTRALIA

Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141

THE COURT ORDERS THAT:

1.    The name of the First Respondent is amended to the Minister for Immigration and Border Protection.

2.    The appeal is dismissed.

3.    The Appellant is to pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

FLICK J

1        The Appellant, Mr Salahuddin, entered Australia on 6 July 2000 when he was almost 12 years old. He departed Australia two years later but returned in November 2004. He thereafter was convicted in Australia of a number of criminal offences. His criminal history reveals a series of offences committed between October 2005 and February 2012.

2        Consideration was given to the cancellation of the visa then held by Mr Salahuddin. Section 501 of the Migration Act 1958 (Cth) (“Migration Act”) confers a discretionary power to both refuse to grant a visa and to cancel a visa where a person does not pass the “character test”. In giving consideration to the cancellation of Mr Salahuddin’s visa, the Minister’s delegate sought to apply Ministerial Direction No 55 – Visa refusal and cancellation under s 501 (“Ministerial Direction”). That Ministerial Direction had been given pursuant to the power conferred by s 499 of the Migration Act.

3        On 16 October 2012 the delegate decided to cancel Mr Salahuddin’s visa. Review was sought before the Administrative Appeals Tribunal (“the Tribunal”). On 7 January 2013 that Tribunal affirmed the delegate’s decision: Re Salahuddin and Minister for Immigration and Citizenship [2013] AATA 1. An Originating Application For Review of a Migration Decision was then filed in this Court. It was amended on 28 March 2013. The sole ground of review relied upon was that the Tribunal had failed to consider the matter specified in cl 9.1.2(1)(a) of the Ministerial Direction. That application was dismissed: Salahuddin v Minister for Immigration and Citizenship [2013] FCA 588. The primary Judge concluded that although the Tribunal “did not refer expressly to the nature of the harm to individuals or the Australian community should Mr Salahuddin engage in further criminal conduct… the whole thrust of the decision was that Mr Salahuddin is unlikely to break his drug addiction and that it is almost inevitable that he will re-offend by committing the same sort of offences as were demonstrated in his existing criminal record”: [2013] FCA 588 at [40]. His Honour considered that the facts before him were “very similar” to those before the Court in Minister for Immigration and Citizenship v Obele [2010] FCA 1445. Katzmann J in that case had also affirmed a decision cancelling a visa pursuant to s 501 of the Migration Act and rejected a like argument.

4        Mr Salahuddin now appeals to this Court.

5        The appeal was first listed for hearing on 2 October 2013 but did not proceed on that day. Mr Salahuddin was in the process of seeking to appeal a decision refusing him legal aid. Section 57 of the Legal Aid Commission Act 1979 (NSW) provides that a court “shall adjourn” a proceeding in circumstances where a party has either appealed such a decision or intends to appeal. An exception is where the appeal or intention to appeal is “frivolous or vexatious or otherwise intended to improperly hinder of improperly delay the conduct of the proceedings…”. On 10 October 2013 Mr Salahuddin confirmed that his appeal had been unsuccessful.

6        The hearing of the appeal proceeded on 13 November 2013. Mr Salahuddin appeared unrepresented. The Minister appeared represented by Counsel.

7        The appeal is to be dismissed with costs.

THE GROUNDS OF APPEAL

8        The Notice of Appeal as filed set forth some 18 separate Grounds of appeal.

9        An affidavit filed by Mr Salahuddin on 17 September 2013 attaches an Amended Notice of Appeal setting forth four grounds, being (in summary form):

    a failure “to take account of relevant material”, being a failure to consider those matters referred to in cl 9.1.2(1)(a);

    the taking into “account of irrelevant considerations”, namely an error on the part of the primary Judge “in agreeing with [the Administrative Appeals Tribunal] that the whole thrust of the decision was that the Applicant is unlikely to break his drug addiction ignoring the fact that the Applicant was undertaking concentrated rehabilitative programs…”;

    “factual error”, clarified during the hearing to mean the finding made by the Tribunal that “it is almost inevitable that [Mr Salahuddin] will reoffend…”; and

    a “denial of natural justice”, namely the failure to give “a considerable amount of weight in favour of [Mr Salahuddin]” to his having adopted a “Western way of life and free democratic lifestyle…”.

10        Both the Notice of Appeal as filed and the proposed amendments to the Notice of Appeal as annexed to the 17 September 2013 affidavit seek to raise grounds not relied upon before the primary Judge.

11        The Full Court clearly has a discretion to permit an appellant leave to rely upon fresh grounds. But it will only exercise that discretion where it is “expedient in the interests of justice to do so …”: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158. Kiefel, Weinberg and Stone JJ there concluded:

[46]    In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so …

[47]    In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

[48]    The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

Appl’d: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 at [163], 147 FCR 51 at 84 per Madgwick J (Conti J agreeing).

12        In the circumstances of the present appeal it is concluded that the discretion to permit Mr Salahuddin to depart from the sole ground relied upon before the primary Judge and to now rely upon further Grounds of appeal should be refused because:

    Mr Salahuddin was represented by Counsel before the primary Judge and an informed judgment was then made as to how best to advance the case sought to be agitated;

    no reason was advanced by Mr Salahuddin as to whether the arguments now sought to be raised were previously considered and abandoned or any reason as to why the grounds now sought to be relied upon were not previously agitated before the primary Judge; and

    the grounds are without merit. If attention is confined to the most recently proposed amendments, each of the grounds is essentially a challenge to findings of fact made by the Tribunal. None clearly raise any jurisdictional error.

It is not considered that it is “expedient in the interests of justice” to now permit Mr Salahuddin leave to rely on any Ground of appeal different to the argument relied upon before Jacobson J.

CLAUSE 9.1.2(1)(A)

13        Clause 9.1.2(1) of the Ministerial Direction provides as follows:

In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In making this assessment, decision-makers must have regard to, cumulatively:

(a)    The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and

(b)    The likelihood of the person engaging in further criminal or other serious conduct, taking into account:

(i)    information and evidence on the risk of the person re-offending; and

(ii)    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

14        Counsel for the Minister correctly conceded that a failure on the part of the Tribunal to “have regard to” the matters set forth in cl 9.1.2(1)(a) would constitute jurisdictional error and a basis upon which the decision of the Tribunal could be set aside. When considering a predecessor version of the current Ministerial Direction, Katzmann J in Minister for Immigration and Citizenship v Obele [2010] FCA 1445, 119 ALD 358 concluded:

[53]    It was common ground that a failure to do this by the Tribunal would amount to jurisdictional error and this is undoubtedly correct. It would plainly be an error that caused the Tribunal’s exercise of the discretion in s 501(2) to seriously miscarry since it is a fundamental feature of the Direction’s requirements that the potential for harm to the community be assessed in the light of both the probability of the harm occurring and the nature of that harm. The two-fold nature of this deliberative process is emphasised in both paras 5.2(2) and 10.1(2). Put in more canonical terms, a failure to appreciate this requirement of the Direction would amount to an error of law which caused the Tribunal to ask itself the wrong question so that its exercise or purported exercise of power was thereby affected. See Craig v South Australia (1995) 184 CLR 163 at 179.

Counsel for the Minister in the present appeal endorsed her Honour’s statement of the law. In Obele, her Honour went on to observe:

[54]    Thus, the real issue between the parties was the proper inference to be drawn from the Tribunal’s reasons as to whether it had performed the task prescribed for it by the Direction and, in particular, whether it had properly assessed the harm that Mr Obele may cause to the Australian community if he continues to reside within it by considering not only the probability of the harm occurring but the nature of any harm he may cause.

Such was also the “real issue” in the present appeal.

15        In the present appeal, Counsel submitted that the Tribunal had either expressly had “regard to” cl 9.1.2(1)(a) or – as a matter of substance – had “regard to” that provision. Counsel further accepted that there was, however, no express reference by the Tribunal to “the nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct…”.

16        The former submission can be rejected. The Tribunal, in its reasons for decision, expressly set forth the text of cl 9.1.2(1)(a). But to do so, with respect, does not expressly expose any consideration being given to that provision.

17        But the latter submission should be accepted. Such was also the conclusion of the primary Judge. So much, it is concluded, necessarily flows from the following paragraphs of the Tribunal’s decision:

    express reference to cl 9.1.2(1)(a) (at para [19]);

    recitation of the “nature of the offences” (at para [14]); and

    reference to Mr Salahuddin’s “alcohol dependence” and his “post-release rehabilitation plans” (at paras [25] to [29]).

Particular reliance was placed by Counsel for the Minister upon the following comments of the Tribunal:

[40]    It is a matter of common knowledge that while heroin is highly addictive, some people are able to break that addiction and go on and make a positive contribution to society. Even with the support of his family I think at this point in his life it is unlikely that Mr Salahuddin will be able to beat his addiction. Even if it is accepted that he is genuine in his commitment to stop using illicit drugs, the length of his criminal history, the strength of his addiction, his failure to have undergone a structured rehabilitation program coupled with his immaturity and impulsivity, indicate that even with the help of his parents the odds are stacked against him. I think the risk of Mr Salahuddin returning to drug use if he were to remain in Australia is moderate to high. In my opinion if he were to continue to use drugs in the community it is almost inevitable that he will reoffend.

[41]    While the crimes committed by Mr Salahuddin to date are not at the high end of the scale in terms of seriousness, the real risk that he will reoffend leads me to conclude that the primary consideration of the protection of the Australian community weighs heavily against him.

18        Counsel quite properly submitted that – on the facts of the present case – there was a close correlation between an analysis of the offences committed by Mr Salahuddin and “the nature of the harm to individuals or the Australian community…”. Although there was no express reference in the Tribunal’s reasons to “the nature of the harm to individuals or the Australian community”, the above references and findings made by the Tribunal lead to a conclusion that those matters were in fact matters to which the Tribunal had “regard”.

19        Separate from a conclusion founded upon an assessment of the reasons of the Tribunal in a manner which is not “over zealous” or designed “to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed” (cf. Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ), is a recognition of the care and attention given by the Tribunal in the present appeal to its fact-finding and reasoning process. When it is necessary to draw an inference that a particular matter has or has not been taken into account, French, Sackville and Hely JJ in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, 75 ALD 630 said:

[47]    The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

These words of caution have oft been repeated: e.g., Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21 at [32] per Goldberg J; SZQMA v Minister for Immigration and Citizenship [2012] FCA 433 at [39], 127 ALD 305 per McKerracher J; MZYPA v Minister for Immigration and Citizenship [2012] FCA 581 at [13] per Bromberg J; DZABK v Minister for Immigration and Citizenship [2013] FCA 328 at [11] per Flick J; Sauvao v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 827 at [36] per Cowdroy J. See also: Woolworths Ltd v Director of Liquor Licensing [2012] WASC 384 at [45] per E M Heenan J.

20        These general words of caution, however, do not relieve a reviewing court of carefully scrutinizing the reasons of an administrative decision-maker.

21        The rationale for imposing an obligation to provide reasons upon administrative decision-makers, such as the Tribunal in the present case, is not to be too readily placed to one side. As Kirby J acknowledged, albeit in a dissenting judgment, in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme [2003] HCA 56, 216 CLR 212:

[105]    The rationale of the obligation to provide reasons for administrative decisions is that they amount to a “salutary discipline for those who have to decide anything that adversely affects others”. They encourage “a careful examination of the relevant issues, the elimination of extraneous considerations, and consistency in decision-making”. They provide guidance for future like decisions. In many cases they promote the acceptance of decisions once made. They facilitate the work of the courts in performing their supervisory functions where they have jurisdiction to do so. They encourage good administration generally by ensuring that a decision is properly considered by the repository of the power. They promote real consideration of the issues and discourage the decision-maker from merely going through the motions. Where the decision effects the redefinition of the status of a person by the agencies of the State, they guard against the arbitrariness that would be involved in such a redefinition without proper reasons. By giving reasons, the repository of public power increases "public confidence in, and the legitimacy of, the administrative process”.

And a requirement for a decision-maker to “have regard” to (for example) a Ministerial Direction is to impose upon decision-makers a discipline as to the matters to be taken into account and is a requirement which seeks to achieve greater consistency in decision-making. It is not for a reviewing court to be satisfied that there was evidence before an administrative decision-maker that was capable of supporting the conclusion in fact reached and to ignore the reasons actually given by the Tribunal: cf. FTZK v Minister for Immigration and Citizenship [2013] FCAFC 44 at [117]. Kerr J, there in dissent, rejected any suggestion that “the reasons actually given by the Tribunal can be ignored”. His Honour further observed that that “proposition would turn on its head the fundamental relationship between administrative decision-makers and Chapter III courts exercising the power of judicial review”: [2013] FCAFC 44 at [118]. Repeated occurrences upon which this Court is invited to consider – not the reasons expressly given by an administrator – but rather what is submitted to be the reasoning process implicit in reasons expressly provided, should not be encouraged. A failure on the part of a decision-maker to expressly or impliedly have regard to a mandatory consideration cannot be remedied by this Court either speculating as to what the decision-maker may have decided had the consideration been taken into account or the Court itself forming a view as to what the most likely decision would have been. Conversely, no encouragement should be given to encouraging claimants to bring unmeritorious applications founded upon a failure on the part of a decision-maker to expressly refer to a consideration which was plainly taken into account, albeit not expressly.

22        A balance must necessarily be struck between imposing upon administrative decision-makers some mere “formalistic” requirement to expressly refer to matters to which they must have regard and a requirement that administrative decision-makers in fact focus as a matter of substance upon the facts and merits of the individual application being made and the administrative or statutory context in which decisions are to be made. A recognition of the ability of a reviewing court to review the reasons for an administrative decision in a practical and realistic manner – as opposed to a manner more aligned to discerning error where none truly exists – should not be construed as a freedom for administrators to fall short of any obligation to provide findings and reasons and to properly consider an application in accordance with law. Where the context in which a decision is to be made requires that consideration be given having regard to specified matters, it forever remains the preferred course for any administrator to expressly refer to such matters. To do so largely removes any room for argument and provides assurance to the parties – especially the frequently unrepresented claimant – that a case has been properly considered. A failure to do so exposes such a decision-making process to a perhaps well-justified perception on the part of a claimant that his decision has not been made in accordance with law. Any such failure also fails to perhaps explain to a reviewing court as fully as would otherwise have been desirable the process of reasoning applied to the facts. The importance to a claimant, in particular, that his claims have been considered in accordance with law, cannot be under-stated. This is of universal importance. It only assumes added significance when, as in the present appeal, it is recalled that Mr Salahuddin has spent about one half of his life in Australia. Yet the consequence of the delegate’s decision is that he will in all probability be now removed from Australia.

23        Although it is concluded that the Tribunal in fact had regard to the “nature of the harm to individuals or the Australian community”, as required by cl 9.1.2(1)(a) of the Ministerial Direction, it would have been far preferable for it to have in fact expressly referred to and addressed this consideration. Any process of implication is necessarily uncertain. That process of implication may be readily drawn in the present appeal when attention is focussed on Mr Salahuddin’s history of shoplifting, larceny and breaking and entering private property. The “nature of the harm” is the criminal interference with private property rights. But the process of implication is far less certain when attention is focussed on the offences as to assault and assault occasioning actual bodily harm. Those offences may have been unrelated to any history of drug addiction such that there presently remained no prospect of continuing “harm to individuals or the Australian community”. That prospect was not expressly addressed by the Tribunal. And no finding of fact was made which readily exposed how any such prospect may have been assessed.

24        It is nevertheless concluded, albeit with some reservation, that the Tribunal in fact undertook its task of decision-making substantially in accordance with the Ministerial Direction. Its failure to expressly address the considerations in cl 9.1.2(1)(a) does not expose jurisdictional error given the conclusion that it implicitly did so. The primary Judge was correct in dismissing the appeal from the decision of the Tribunal.

CONCLUSIONS

25        There has been no failure on the part of the Tribunal to have regard to “the nature of the harm to individuals or the Australian community” as required by cl 9.1.2(1)(a) of the Ministerial Direction. The primary Judge was correct in so concluding.

26        The appeal should be dismissed. There is no reason why the Appellant should not pay the costs of the Respondent Minister.

THE ORDERS OF THE COURT ARE:

1.    The name of the First Respondent is amended to the Minister for Immigration and Border Protection.

2.    The appeal is dismissed.

3.    The Appellant is to pay the costs of the First Respondent.

Associate:

Dated:    26 November 2013

REASONS FOR JUDGMENT

KATZMANN J

27        I agree with the presiding judge and, generally speaking, with his Honour’s reasons.

28        There is no merit in the submission that the tribunal erred by failing to take into account the nature of the harm to the Australian community. The primary judge was correct and there is no error in his reasoning.

29        While it is true that the tribunal made no express finding concerning the nature of the harm and that it would have been better had it done so, it was plainly alive to the issue. At para 11 of its reasons it t referred to the instruction in the Direction that requires decision-makers to have regard to the principle that “the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens”. That is the nature of the harm with which the Direction is concerned. At para 35 it mentioned the need to consider the risk to the Australian community should the visa holder reoffend and referred again to the Government’s commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens. In a section of its judgment entitled “nature of the offences” the tribunal noted that the appellant’s crimes were mainly drug and property related (shop lifting, larceny, break, enter and steal) and some involved violence, including two convictions for assault occasioning actual bodily harm. The tribunal also noted that, apart from offences committed when he was a juvenile, none of the appellant’s victims was a child or an elderly person. These were observations about the nature of the harm to the Australian community caused by the appellant’s past offending. The tribunal made them in the context of considering the factors that the Direction stipulates (in cl 9.1.1(1)) are to be taken into account in assessing “the seriousness and nature” of the criminal offending, including:

a)    The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

b)    The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled) … are serious.

30        In assessing the risk of the appellant reoffending, it is plain from the tribunal’s reasons that the senior member had in mind the prospect that the same kind of harm would occur in the future. As I said in Obele at [59] and as the primary judge observed at [46], the assessment of the risk and nature of re-offending, which is a principal task of the tribunal in this class of case, is routinely based on past behaviour. In a case such as this where the offences were found to be related to the appellant’s drug addiction and where the evidence before the tribunal was that he had not overcome his addiction, the past may be a good predictor of the future.

31        That said, I endorse the remarks of the presiding judge to the effect that it is not only prudent but also desirable that the tribunal explicitly deals with the nature of the harm to individuals or to the Australian community. It is a serious matter to deport a visa holder and particularly so where, as here, he has lived in this country since he was a child. He is entitled to be informed in the clearest of terms why he may no longer do so.

32        I also agree with the presiding judge that leave should not be given to the appellant to rely on the remaining grounds of appeal. They take issue either with statements made by the primary judge about factual findings of the tribunal or with supposed factual errors. The decision of the tribunal was a privative clause decision within the meaning of s 474 of the Migration Act 1958 (Cth). It could only be challenged for jurisdictional error: Plaintiff S157 v The Commonwealth of Australia (2003) 211 CLR 476. The alleged factual error is difficult to understand. In any event, a factual error, without more, is not capable of amounting to a jurisdictional error. Nor is there jurisdictional error merely in placing inadequate (or, for that matter, excessive) weight on a particular piece of evidence: cf. Minister for Immigration v SZJSS (2010) 243 CLR 164 at [36]. Finally, the proposition advanced in ground 2 of the amended notice of appeal that the tribunal ignored the fact that the appellant was undertaking “concentrated rehabilitative programs” is either not borne out by its reasons or yet another impermissible challenge to the tribunal’s fact-finding.

33        The appeal must therefore be dismissed. Costs should follow the event.

Associate:

Dated:    26 November 2013

REASONS FOR JUDGMENT

WIGNEY J

34        I agree with Flick and Katzmann JJ.

Associate:

Dated:    26 November 2013