FEDERAL COURT OF AUSTRALIA

Durani v Minister for Immigration and Border Protection [2014] FCAFC 79

THE COURT ORDERS THAT:

1.    Leave to amend the notice of appeal to add paragraph 1(a)(i)(C) be refused.

2.    The appeal be allowed.

3.    The orders made on 24 February 2014 be set aside and in lieu thereof it be ordered:

(i)    the decision of the respondent made on 3 September 2013 to cancel the applicant’s visa under s 501A(2) of the Migration Act 1958 (Cth) (the decision) be set aside;

(ii)    the respondent be restrained from giving effect to the decision;

(iii)    the respondent pay the applicant’s costs as agreed or taxed.

4.    The appellant pay the respondent’s costs of the appellant’s application to amend the notice of appeal to add paragraph 1(a)(i)(C), as agreed or taxed.

5.    Subject to order 4, the respondent pay the appellant’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

THE COURT

Introduction

1        This appeal is from a judgment of a judge of this Court given on 24 February 2014 dismissing an application for judicial review of a decision of the then Minister made on 3 September 2013 under s 501A(2) of the Migration Act 1958 (Cth) (the Act) to cancel the appellant’s visa.

2        The decision of the Minister, acting in a personal capacity, was to set aside the decision of the Administrative Appeals Tribunal (the Tribunal) not to exercise the power conferred by s 501(2) to cancel the visa, and then to cancel the visa.

3        The application for review was made by virtue of s 476A(1)(c) of the Act, by s 476A(2) of the Act this Court’s jurisdiction being the same as the jurisdiction of the High Court under s 75(v) of the Constitution. By his appeal, the appellant seeks to show that the primary judge was in error in concluding that there was no jurisdictional error in the decision of the Minister.

4        Section 501A applied because the Tribunal made a decision (the original decision) not to exercise the power conferred by s 501(2) to cancel the visa that had been granted to the appellant.

5        Section 501A(2) relevantly provided as follows:

Action by Minister—natural justice applies

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

(a)     …

(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 … cancellation is in the national interest.

…

Minister’s exercise of power

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

…

Decision not reviewable under Part 5 or 7

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

Note 1:    For notification of decisions under subsection (2), see section 501G.

Note 2:    For notification of decisions under subsection (3), see section 501C.

As will appear below, this appeal is concerned only with s 501A(2)(e), that is, that the Minister must be satisfied that cancellation is in the national interest before he may set aside the decision of the Tribunal and cancel the visa.

The facts

6        We reproduce the following background facts from the decision of the primary judge.

7        The appellant is a 38-year-old Indian national. He first came to Australia on 6 December 2006 as the holder of a Class UE, Subclass 422 (Medical Practitioner) visa. On 13 July 2009 he was granted a permanent visa in the form of a Class VE, Subclass 175 (Skilled – Independent) visa. It is that visa that was the subject of the cancellation decision of 3 September 2013.

8        The appellant has a wife and a child in Australia, both of whom are Australian citizens.

9        In February 2010, the appellant was employed as a Resident Medical Officer at the Royal Perth Hospital (RPH). On 20 February 2010 he committed the offences of unlawful and indecent assault (three counts) and sexual penetration without consent (two counts) against a 19-year-old female patient of the RPH. He was convicted of those offences by the District Court of Western Australia on 10 June 2011 and sentenced to a total effective period of imprisonment of 2 years and 4 months. The appellant’s appeal against the convictions to the Court of Appeal of the Supreme Court of Western Australia was dismissed on 30 August 2012: Durani v Western Australia [2012] WASCA 172.

10        The appellant was imprisoned from 13 July 2011 until his release on parole on 6 February 2013, at which time he was taken into immigration detention.

11        The appellant’s visa was first cancelled on 5 February 2013. That cancellation was made under s 501(2) of the Act by a delegate of the Minister.

12        A review of the cancellation decision under s 501(2) was heard by the Tribunal and, on 6 May 2013, the decision was set aside and, in substitution, a decision made that the appellant’s visa not be cancelled: Re Durani and Minister for Immigration and Citizenship [2013] AATA 273. The appellant was then released from immigration detention.

13        On 4 June 2013, notice was given to the appellant that the then Minister intended to consider whether to set aside the decision of the Tribunal and cancel the appellant’s visa under s 501A(2) (the Notice). Attached to the Notice was a document containing extracts from the Act, including s 501A. The Notice informed the appellant that:

When considering whether to cancel your visa under subsection 501A(2), the Minister will take into account information that has previously been provided to you, your criminal record, the AAT’s decision, information provided by you in response to the notice of intention to consider cancellation sent to you on 7 November 2011 and any new information.

    The Notice then set out a list of “relevant information” which included:

    the decision of the Tribunal dated 6 May 2013;

    sentencing remarks of the District Court of Western Australia of 13 July 2011;

    the judgment of the Court of Appeal of Western Australia of 30 August 2012; and

    the appellant’s National Police Certificate dated 29 August 2011.

14        The Notice informed the appellant that:

You may wish to submit information about whether you pass the character test or provide comment on, or information relating to, whether the Minister should exercise his discretion to cancel your visa and on the Minister’s consideration of whether cancellation of your visa would be in the national interest. (Emphasis added.)

…

… Please note that, while the Minister will take the AAT’s decision into consideration, he is not obliged to accept or agree with all of the AAT’s findings and reasoning.

15        By letter dated 12 June 2013 an officer of the then Department of Immigration and Citizenship (the Department) noted the existence of some “further information” which might be taken into account in making the foreshadowed cancellation decision.

16        On 24 June 2013 the appellant’s solicitor wrote to the officer of the Department explaining, in substance, that the correspondence received to date concerning the potential cancellation decision did not specify any potential grounds upon which such a decision might be made.

17        The officer of the Department replied by letter on 27 June 2013. The letter informed the appellant’s solicitor that the relevant “information” which the Minister was going to consider when deciding whether to exercise his power under s 501A(2) was that referred to and contained in the Notice and the 12 June 2013 letter. It also stated that, as detailed in s 501A(2), the grounds under which the Minister may decide to cancel the appellant’s visa included that the Minister was satisfied that the cancellation is in the national interest.

18        The appellant replied to that letter by a facsimile to the officer of the Department of 15 July 2013.

19        On 3 September 2013 the then Minister made the decision under s 501A(2) to cancel the appellant’s visa, and the appellant was detained on 6 September 2013.

The decision of the Minister

20        The findings concerning the character test are at [6]–[8] of the Minister’s statement of reasons. The appellant did not challenge this aspect of the Minister’s reasons and his counsel acknowledged before the primary judge that the criteria under s 501A(2)(a) and (b) (which must mean s 501A(2)(c) and (d)) were each established.

21        In relation to the national interest the Minister found:

9.    Dr DURANI has been convicted of two counts of sexual penetration without consent and three counts of unlawful and indecent assault. I consider these offences to be very serious sexual offences. While committing these offences Dr DURANI abused his position of authority and trust in relation to a vulnerable patient under this [sic] care. I consider that these circumstances aggravate the seriousness of Dr DURANI [sic] offences. I also consider that these sexual offences are repugnant to the Australian community and offend the values of Australian society.

10.    Dr DURANI was granted a visa under the skilled migration program to allow him to provide medical services to the Australian community. I consider that his offending committed while performing his professional duties brings the skilled migration program into disrepute and therefore undermines public confidence in the program and therefore its integrity.

11.    Furthermore, I have had regard to Dr DURANI’s conduct and the need to preserve public confidence in the nation’s health care system.

12.     I have considered the claims made by Mr Shakur [the appellant’s solicitor], that it would be in the national interest for Dr DURANI to remain in Australia as he is a competent doctor with the support of his colleagues and there is a possibility that he may again be able to practice medicine.

13.    While, I accept that the cancellation of Dr DURANI’s visa will cause harm to his wife and son I do not agree with Mr Shakur’s argument that this harm is so severe that it outweighs the benefits to the national interest achieved by the cancellation of his visa.

14.    Having regard to all of the above material, I am satisfied that the cancellation of Dr DURANI’s visa is in the national interest. His sexual offending was very serious and his conducted [sic] undermined the integrity of the skilled migration program as well as reducing public confidence in the nation’s health care system.

In relation to the exercise of his discretion, the Minister said:

21.    In light of the professional opinions as expressed in the Adult Community Services reports, combined with Dr DURANI’s ongoing lack of insight into his offending and the absence of therapeutic intervention, I find that there is a risk that Dr DURANI will reoffend and that if he does reoffend serious harm could result.

22.    I have considered that while Dr DURANI remains de-registered as a medical practitioner he will not be exposed to the circumstances that led to his offending. Nevertheless, the prospect remains that he may offend in other circumstances and it cannot be said with certainty that he will not commit further sexual offences. While the prospects of him being re-registered as a medical practitioner and placed in a similar position may be slight, he has expressed his desire to again practice medicine in Australia. Given the nature and seriousness of Dr DURANI [sic] offences, even a low risk that he will repeat his crimes is unacceptable.

The Minister also said, under the heading “Conclusion”:

37.    A non-citizen who has committed a serious crime of a sexual nature, particularly against vulnerable members of the community should generally expect to forfeit the privilege of staying in Australia. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling a visa.

38.    While the risk of Dr DURANI reoffending may be low, the nature of his offending and the harm should it be repeated means that any level of risk is unacceptable and prevails over all countervailing considerations, including the best interests of Dr DURANI’s minor biological son Mohammad, the strength of his ties to Australia, his period of residence, the effect of cancellation on his wife and any impediments that he may face in establishing himself in India.

22        It may also be noted that a submission to the Minister entitled “Issues for Consideration of Possible Visa Cancellation Under Subsection 501A(2) of the Migration Act 1958” stated as follows:

38.     Dr DURANI was granted a visa under the skilled migration program to allow him to provide medical services to the Australian community and in return he was granted the right to reside permanently in Australia. Dr DURANI’s offences were committed while he was performing his professional duties. You may consider that his professional misconduct brings the skilled migration program into disrepute and therefore undermines public confidence in the program. The cancellation of Dr DURANI’s visa and his removal from Australia may demonstrate that those professionals who migrate to Australia as part of the skilled migration program are expected to uphold professional standards and, as a result, restore confidence in the program. In considering the concept of national interest it is open to you to have regard to the broad aims of the skilled migration program. Consequently, to maintain the integrity of the skilled migration program, you may consider that it would be in the national interest for Dr DURANI’s visa to be cancelled.

39.    You may also consider that the cancellation of Dr DURANI’s visa would be in the public interest as it would help to preserve public confidence in the nation’s health care system. As his Honour Judge Fenbury stated:

“The community expects that any health professional, public or private, who has proven to have offended in those circumstances be dealt with so as to deter others and to preserve the integrity of the assumptions upon which the health system operates. One assumption is that if you are young and female with an urgent health issue, you can attend at an emergency department, unaccompanied, and not be concerned about being sexually assaulted.”…

40.    Mr Shakur asserts that it would be in the national interest for Dr DURANI to remain in Australia:

            “… He is a competent, committed doctor with the overwhelming support of his colleagues at not only the Royal Perth Hospital but within the wider medical profession of Perth. As was advanced on his behalf before the AAT any subsequent admission of Dr Durani to medical practice may be qualified by any conditions or requirements imposed by the Medical Board of WA compatibly with that Board’s statutory framework. Nonetheless several eminent doctors testified to the AAT that they would support any application by Dr Durani for readmission to medical practice. That evidence was unchallenged before the AAT and indeed there is no evidence or factual material of which Dr Durani is aware which indicates any opposition by any member of the medical profession in WA to Dr Durani’s readmission.”…

The reasons of the primary judge

23        So far as relevant to the grounds pursued on appeal, the primary judge reasoned as follows in relation to the alleged denial of procedural fairness.

24        His Honour applied Maurangi v Bowen [2012] FCA 15; (2012) 200 FCR 191 at [60] where Lander J, in concluding that there was no denial of procedural fairness, stated:

The applicant was aware that his substantial criminal record was such that he could not pass the character test, and that he could not satisfy the Minister that he could pass the character test. He was made aware in the notice that if that were the case, which clearly it was, the matter that the Minister would consider was whether the Minister was satisfied that the cancellation of the applicant’s visa was in the national interest. In my opinion the applicant was made aware of the matters under consideration. (Emphasis added by the primary judge.)

25        The primary judge then followed SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 and Tewao v Minister for Immigration and Citizenship [2012] FCAFC 39; (2012) 126 ALD 185 at [36] when the Court stated “the minister was not required to give the appellant a ‘running commentary’ on his thought processes.” The primary judge then referred to Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [9] for the propositions that “[p]rocedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power”, the decision-maker “must also advise of any adverse conclusions which would not obviously be open on the known material” and “… a decision-maker is not otherwise required to expose his or her thought processes or provisional views”. The reasoning of the Minister that the appellant’s serious sexual offending undermined the integrity of the skilled migration program as well as reducing public confidence in the nation’s health care system fell into that latter category. The core conclusion of the Minister, leading to his making the decision, was that “[w]hile the risk of Dr DURANI re-offending … [was] low, the nature of his offending and the harm should it be repeated mean[t] that any level of risk [was] unacceptable and prevail[ed] over all countervailing considerations …”.

26        The primary judge concluded that the notice raised the critical issues and in particular specifically informed the appellant that his criminal record would be taken into account in the Minister’s considerations against the well understood fact that the appellant could not pass the character test: s 501(6) and (7). The Minister’s adverse conclusions concerning the national interest all related to implications arising from the appellant’s substantial criminal record and were, in each case, an obviously natural response, or were obviously open on the known material: SZGUR at [9]. It would have been evident to the appellant that a conclusion adverse to his interests might be drawn with respect to the national interest arising from his substantial criminal convictions. So much was clear by statements to the effect that consideration was to be given to cancellation of the appellant’s visa under s 501A(2), by the identification of the national interest as relevant to that consideration and by the invitation to the appellant to submit information in respect of that consideration.

27        The appellant’s response of 15 July 2013, at [16], addressed the issue of the assessment of the national interest, including by acknowledging that the nature of the assessment to be conducted required a broad evaluative judgment for which a number of considerations may be relevant. It also acknowledged that, in determining the questions of “national interest” and the residual discretion under s 501A(2), the Minister was bound, by reason of the decision in Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288; (2012) 202 FCR 417 per Bromberg J at [45]–[46], to take into account, in relation to both questions, “the potential for the Australian community to be harmed by the continued presence in Australia of the non-citizen”. Thus, recognising that such considerations included the risk of future harm to the community, the appellant’s response argued that it was in the national interest for him to remain in Australia, because “[h]e is a competent, committed doctor with the overwhelming support of his colleagues at not only the Royal Perth Hospital but within the wider medical profession of Perth.”

28        The primary judge distinguished Ruatita v Minister for Immigration and Citizenship [2013] FCA 542; (2013) 212 FCR 364 on which the appellant had relied. Here, by contrast, as the Minister had submitted, the appellant was advised in clear terms that an issue for consideration by the Minister was whether it was in the national interest that his visa be cancelled. Such consideration obviously concerned, centrally, the appellant’s substantial criminal record. In his submissions to the Minister the appellant addressed the issue of the national interest, and submitted that it was in the national interest for him to remain in Australia.

29        The primary judge concluded there was no denial of procedural fairness.

30        As to the second ground which was maintained on appeal, that the Minister had fettered his discretion, the primary judge said that this ground was in substance that the Minister applied a test that where such an appellant was to be permitted to remain in Australia there must be no risk of recidivism: a test which could almost never be met.

31        The primary judge said that this was, in effect, a repetition of the failed argument advanced in an earlier appeal to the Full Court in Tewao. The position here, as in Tewao, was that no such “test” was applied by the Minister. Rather, on the facts before him, the Minister concluded that, although the risk of this appellant re-offending was low, it was not in the national interest to accommodate that, or indeed any, such risk.

32        The primary judge concluded that the Minister had not fettered his discretion.

Grounds of appeal

33        The grounds in the proposed amended notice of appeal were as follows:

1.    The learned primary Judge erred in law in failing to find that the Respondent, exercising his power under s 501A(2) of the Migration Act 1958 (Cth) (the Act) to cancel the Appellant's visa, committed jurisdictional error in failing to accord the Appellant procedural fairness by:

(a)    Informing the Appellant of:

(i)    The considerations which he (the Respondent) regarded as being relevant to the process of his being satisfied that canceling of the Appellant’s visa was in the national interest, namely that

(A)    the nature and circumstances of the Appellant’s conduct bring the skilled migration program into disrepute and therefore undermine public confidence in and/or the integrity of the program ;

(B)    the nature and circumstances of the Appellant’s conduct reduce public confidence in the nation’s health care system.

(ii)    The ground on which he was considering exercising his discretion to make a determination adverse to the Appellant namely that the nature of the Appellant’s offending and the harm should it be repeated means that any level of risk of reoffending is unacceptable and prevails over all countervailing considerations; and

(b)    providing the Appellant with a reasonable opportunity to be heard on those considerations and that grounds.

2.    The learned primary Judge eared [sic] in law in failing to find that the Respondent, in reaching that same state of satisfaction, committed jurisdictional error in impermissibly fettering the exercise of his discretion, further or alternatively inflexibly applying a policy or rule, by proceeding on the premise that, given the nature of the offending and harm the subject of the offences for which the Appellant had been convicted, any risk of reoffending was unacceptable and therefore necessarily prevails over all countervailing considerations, irrespective of their degree of relevance and the factual material supporting their cogency.

Ground 1(a)(ii) does not appear to have been put to the primary judge or articulated in the written submissions on behalf of the appellant, but senior counsel for the Minister said he was in a position to deal with that amendment and the Court allowed argument to proceed on that basis.

34        A further proposed amendment on behalf of the appellant, which was not fully articulated in the course of the hearing of the appeal, was in the following terms, to be inserted as paragraph 1(a)(i)(C):

the cancellation of the Appellant’s visa and the removal of the Appellant from Australia may demonstrate to professionals who migrate to Australia as part of the skilled migration program that they are expected to uphold professional standards and, as a result, restore confidence in the program (being a consideration directed to others, rather than the particular circumstances of the Appellant’s’ [sic] own conduct and the merits of him retaining a visa accordingly).

35        This additional ground stemmed not from the Minister’s statement of reasons but from a passage in the submission to the Minister from his Department which we have set out above. In written submissions filed, with leave, on 10 June 2014 the respondent Minister submitted that leave should not be granted to raise this ground as it rested on a factual assertion which, if raised at the trial, could have been met by evidence from the former Minister who made the decision about what he did and did not take into account. In written submissions dated 20 June 2014 and filed with leave the appellant acknowledged that this ground was an entirely new point but submitted that meaningful content must be given to the proposition that a new point raised on appeal “could possibly have been met by calling evidence below” in a way that balanced the overriding importance of the expediency of justice.

36        We refuse leave to make this amendment for the reason that it could have been met by evidence before the primary judge and it is not therefore in the interests of justice to permit the amendment to be made on appeal: see Coulton v Holcombe (1986) 162 CLR 1 at 7–8; Metwally v University of Wollongong (1985) 60 ALR 68 at 71; (1985) 59 ALJR 481 at 483.

The parties’ submissions

37        The appellant submitted that the generality with which the 4 June 2013 notice was expressed meant that an important issue was not referred to in that notice, nor was it referred to at any other time before the Minister decided to cancel the appellant’s visa. “The important issue was how, and through what kind of reasoning, the [a]ppellant’s criminal history might be evaluated and used in the analysis to be undertaken by the [Minister]” before deciding whether or not to cancel the visa (emphasis in original).

38        It was submitted that the appellant’s criminal history was used by the Minister in his analysis about what was relevantly in the national interest and that use occurred without the appellant having notice of the potential for its use and being able to make a submission about it.

39        In the course of submissions it became apparent that the appellant’s particular complaints in this respect were that the Minister had taken into account, in addressing the national interest, the undermining of the integrity of the skilled migration program and the reducing of public confidence in the nation’s health care system. As indicated above, leave was granted to amend the notice of appeal accordingly.

40        The appellant submitted the Minister then continued to use the appellant’s criminal history with respect to the exercise of his personal discretion and at that point the issue was applied in a way that was inevitably to be fatal to the appellant — namely that “the very fact and circumstances of the appellant’s criminal convictions could operate with such overwhelming force as to warrant the conclusion that any risk of reoffending was unacceptable and would prevail over all countervailing considerations” (emphasis in original). The appellant submitted that this exacerbated the unfairness to him.

41        In the course of submissions it became apparent that the appellant’s particular complaint in this respect was that he was given no notice by the Minister that he was considering exercising his discretion adversely to the appellant on the basis that that any risk of reoffending would prevail over all countervailing considerations and thereby compel an exercise of discretion to cancel the visa.

42        It was submitted that the failure to identify such critical issues could not be characterised as being merely an aspect of the thought processes of the Minister. The appellant relied on NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; (2014) 307 ALR 90 at [145] and NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 307 ALR 49 at [210].

43        The appellant also referred to the evidence before the primary judge relating to the absence of any understanding on the appellant’s part of the grounds on which a potential visa cancellation was at the relevant time being contemplated and what he would have done if the important issue then being contemplated had actually been drawn to his attention.

44        As to the second ground of appeal, the appellant submitted that the primary judge erred in confining the potential operation of this ground to whether there was or was not in truth any “test” that the Minister applied in deciding to cancel the appellant’s visa. The appellant submitted that although the Minister’s reasons did not in terms refer to the application of any “policy”, the effect of the Minister’s reasoning to his conclusion about how his discretion ought to be exercised at [36]–[38] was to the effect that he elected to adopt a fixed and immutable presumption arising from the very fact of the appellant’s criminal convictions. The effect of this limited reasoning was to strip the Minister’s residual discretion of any operative content. The appellant submitted that Tewao v Minister for Immigration and Citizenship [2012] FCAFC 39; (2012) 126 ALD 185 should be distinguished.

45        In relation to ground 1, procedural fairness, the respondent Minister submitted that the present case was different from NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 307 ALR 49 at [210] and NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; (2014) 307 ALR 90 at [3] and [146]–[153] in that the appellant was not “led away” from what turned out to be the critical issues by the contents of notices sent to him. The appellant’s complaint could only be that he was not told which particular aspects of the “national interest” the Minister might consider significant.

46        The Minister submitted that the present case was on all fours with Tewao v Minister for Immigration and Citizenship [2012] FCAFC 39; (2012) 126 ALD 185: in the present case the appellant also contended, in effect, that the Minister should have invited comment on aspects of his assessment of the national interest before making that assessment. The Minister submitted that Maurangi v Bowen [2012] FCA 15; (2012) 200 FCR 191 provided further support for the view that, in circumstances such as the present, procedural fairness did not require additional particularisation of what considerations the Minister may be inclined to regard as important in assessing the “national interest”. This was submitted to be consistent with well-established principles set out in Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [9], Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. In the present case, the Minister submitted, it was self-evident that the offences the appellant had committed were committed in the course of practising the skilled occupation which formed the basis for his migration to Australia and involved a very serious abuse of his position as a medical practitioner in the public health system. There was therefore nothing surprising or unfair in the Minister reaching the conclusions set out in his reasons in relation to the implications of those offences for the national interest.

47        As to the second ground of appeal, the Minister submitted it failed because the Minister’s reasons did not demonstrate that he acted on any “premise” of the kind alleged. It was submitted that the Minister’s conclusion that “even a low risk that [the appellant] will repeat his crimes is unacceptable” and his reasoning at [36]–[38] rested on the Minister’s assessment of the seriousness of the crimes the appellant had committed and the appropriate response to those crimes. It was submitted that to conclude that any risk of the appellant repeating his crimes was “unacceptable” and that this prevailed over all identified countervailing considerations was to make exactly the value judgment called for by s 501A(2) and was, in short, to exercise the discretion.

Consideration

Ground 1 — procedural fairness

48        As we have said, by letter dated 4 June 2013 the appellant was notified that the Minister intended to consider whether to set aside the decision of the Tribunal and to cancel the appellant’s visa under s 501A(2). A copy of the section was provided to the appellant. It was also drawn to the appellant’s attention that the Minister was not required to refer to Ministerial Direction 55 when making a decision personally, although it provided a broad indication of the types of issues that the Minister may take into account. It was also drawn to the appellant’s attention that while the Minister would take the Tribunal’s decision into consideration, he was not obliged to accept or agree with all of the Tribunal’s findings and reasoning.

49        By letter dated 12 June 2013 “new” information was sent to the appellant, being an adult community corrections parole assessment dated 31 July 2012, an adult community corrections review report dated 15 January 2013 and a parole order dated 4 February 2013.

50        It appears that in a telephone discussion on 21 June 2013 the legal representative of the appellant spoke to the relevant officer of the Department and said he sought that officer’s clarification about the grounds on which any decision to cancel the appellant’s visa may be based: “That is because neither the Notice nor any of the other correspondence actually specifies any such grounds, or potential grounds.”

51        By letter dated 27 June 2013 the officer replied, relevantly, that in the case of the appellant:

the information which the Minister will consider when deciding whether to exercise the subsection 501A(2) powers was contained in the letters of 4 June 2013 and 12 June 2013. [The appellant] will be advised if any additional information will be considered by the Minister. The Minister will also consider any information submitted by [the appellant]. [The appellant] may wish to submit information about whether he passes the character test or provide comment on, or information relating to, whether the Minister should exercise his discretion to cancel [the appellant]’s visa and on the Minister’s consideration as to whether cancellation of [the appellant]’s visa would be in the national interest.

52        In his response to the Minister of 15 July 2013, the appellant contended that nothing was advanced as to what the content of the “national interest” might be in the circumstances of his case and on what basis the Minister might accordingly be “satisfied” that cancellation of the appellant’s visa could be in the national interest. However, the appellant addressed the issue of the national interest in the respects to which we refer below.

53        The appellant acknowledged in his response that the determination by the Minister of what is in the “national interest” required a broad evaluative judgment for which a number of considerations may be relevant. The appellant submitted to the Minister that one consideration which the Minister was bound to take into account both for the purpose of determining the “national interest” and the residual discretion was the potential for the Australian community to be harmed by the continued presence in Australia of the non-citizen.

54        The appellant submitted, by reference to the decision of the Tribunal, that the risk of future harm was minimal and, therefore, there would then need to be a most cogent and powerful case available to be shown on the relevant material that the Minister could be satisfied that cancellation was in the national interest and that an exercise of discretion favoured cancellation of the appellant’s visa.

55        The appellant’s response argued that it was in the national interest for him to remain in Australia, because “[h]e is a competent, committed doctor with the overwhelming support of his colleagues at not only the Royal Perth Hospital but within the wider medical profession of Perth.”

56        The appellant’s response also submitted that even if a case might be made for the Minister to be satisfied that cancellation of the appellant’s visa was in the national interest, a fair and just exercise of the Minister’s discretion would be to decline to interfere with the Tribunal’s determination of what was the preferable decision concerning the status of the appellant’s visa.

57        As the primary judge said, Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [9] is authority for the proposition that procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision. This was not new law, as shown by their Honours’ citation of Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591–2.

58        With respect to the primary judge, in our view, simply because the Minister’s adverse conclusions concerning the national interest related to implications arising from the appellant’s substantial criminal record, it does not follow that those conclusions were, in each case, an obviously natural response, or were obviously open on the known material. In our opinion it is necessary to evaluate the circumstances at a lower level of abstraction.

59        Although decided in a different statutory and factual context, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [39]–[43] shows the importance to procedural fairness of the level of particularisation of the issues.

60        We accept the submission on behalf of the respondent Minister that it was self-evident that the offences the appellant had committed were committed in the course of practising the skilled occupation which formed the basis for his migration to Australia and involved a very serious abuse of his position as a medical practitioner in the public health system.

61        However, it does not therefore follow, in our opinion, that there was nothing surprising or unfair in the Minister reaching the conclusions set out in his reasons in relation to the implications of those offences for the national interest and that there was therefore nothing procedurally unfair in the Minister reaching those conclusions. It may be accepted that the “national interest” is a broad criterion.

62        In our opinion it is necessary to give separate consideration to each of the matters taken into account by the Minister of which the appellant complains.

63        As to reducing public confidence in the nation’s health care system, in our opinion, this aspect of the appellant’s criminal offences had been expressly adverted to both in the sentencing remarks of Fenbury DCJ and in the decision of the Tribunal and was self-evidently a matter that might be taken into account by the Minister in deciding whether he was satisfied that the cancellation of the appellant’s visa was in the national interest. Indeed the appellant’s position in the public health system as an aspect of the national interest was specifically raised in the appellant’s submissions to the Minister.

64        As to whether any risk of reoffending will prevail over all countervailing considerations and thereby compel an exercise of discretion to cancel the visa, it is important to bear in mind that the Minister was not applying an inflexible policy that any risk of reoffending would prevail over all countervailing considerations, as we later explain. If there had been such a policy then it may be that there would be a denial of procedural fairness if notice of that policy was not given so that the appellant had an opportunity to make submissions about it or about its applicability to him. Since, in our opinion, there was no such policy, the appellant’s complaint in this respect is about the evaluation or weight to be given to the appellant’s criminal offences. It is significant that the submission made on the appellant’s behalf to the Minister identified as the critical conclusion of the Tribunal that the risk of future harm posed by the appellant to the Australian community was minimal and said that the Minister was bound to have regard to the central consideration that such a risk of future harm was minimal and that there would then need to be a most cogent and powerful case available to be shown on the relevant material that the Minister could be satisfied as to the criterion in s 501A(2)(e). In our opinion, that issue was apparent from the nature of the decision or the terms of the statutory power and an adverse conclusion would obviously be open on the known material.

65        As to the consideration that the appellant’s offending brought the skilled migration program into disrepute and therefore undermined public confidence in the skilled migration program and therefore its integrity, as relevant to the national interest, we reach a different conclusion.

66        We note that the appellant did not submit that the reputation of the skilled migration program was not a matter which went to the national interest within the meaning of s 501A(2)(e). Further, as we have said, we accept the submission on behalf of the Minister that it was self-evident that the offences the appellant had committed were committed in the course of practising the skilled occupation which formed the basis for his migration to Australia.

67        But in our opinion it does not follow that there was therefore nothing surprising or procedurally unfair in the Minister taking into account that aspect of the national interest. As we have said, the criterion of “national interest” is a broad one. That means it may be necessary for the Minister to permit the visa holder, in circumstances such as the present, to make submissions about a particular aspect of the national interest which the Minister may be going to take into account in assessing whether or not he is satisfied that cancellation of the visa is in the national interest.

68        In the present case, characterising the appellant’s criminal convictions by reference to bringing the skilled migration program into disrepute and therefore undermining public confidence in the program and therefore its integrity was not apparent from the nature of the decision or the terms of the statutory power. We do not accept the submission on behalf of the Minister that the circumstances raised a question about whether the nation is picking the right doctors to come here and that has “at least potentially, implications for the skilled migration program” such that bringing the skilled migration program into disrepute and therefore undermining public confidence in the program and therefore its integrity was “a natural and very unsurprising aspect of the decision that was to be made.”

69        In our opinion it is not sufficiently apparent from the facts and circumstances of the case and the statutory criterion that where criminal convictions stem from the skill or qualification by reference to which a visa was granted, those criminal convictions will bring the skilled migration program into disrepute or undermine public confidence in it or undermine its integrity or that cancellation of the visa would, or would tend to, restore that reputation or public confidence in the migration program or its integrity. Further, the appellant had not made submissions on that topic.

70        Neither do we accept the submission on behalf of the Minister that the present case is on all fours with Tewao v Minister for Immigration and Citizenship [2012] FCAFC 39; (2012) 126 ALD 185 or that Maurangi v Bowen [2012] FCA 15; (2012) 200 FCR 191 provided further support for the view that, in circumstances such as the present, procedural fairness did not require additional particularisation of what considerations the Minister may be inclined to regard as important in assessing the “national interest”. In each case, in our opinion, the court must evaluate the circumstances in order to decide whether or not there has been procedural unfairness. It is impermissible to reason that because there are a number of factual similarities or factual overlap between an earlier case and the facts presently under consideration that one result or the other should thereby follow.

71        For that reason, the significance of NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; (2014) 307 ALR 90 at [145] and NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 307 ALR 49 at [210], referred to by the appellant, is in the principles to be derived from them. Those decisions lend some support to the appellant’s submissions but, in our opinion, only to the extent that the breadth of the criterion “national interest” may require, depending on the circumstances of the particular case, that the Minister give the visa holder an opportunity to make a submission on an aspect of the “national interest” which was not apparent or where an adverse conclusion would not obviously be open on the known material.

72        As to the evidence before the primary judge relating to the absence of understanding on the appellant’s part of the grounds on which a potential visa cancellation was being contemplated and what he would have done if the issue had actually been drawn to his attention, it does not appear that the primary judge gave particular consideration to this material. In his affidavit of 26 October 2013, at [8], the appellant stated that he had great concerns about the way the Minister cancelled the visa in that before the visa was cancelled the appellant “did not understand the grounds on which such a cancellation was being contemplated.” He also stated that “[h]ad the grounds on which the Minister was contemplating cancelling my visa actually been drawn to my attention, I would have wished to take advice on them … and (in light of that advice and my instructions) put a submission in some detail to the Department for consideration by it and by the Minister before any decision concerning my visa was actually made. But none of those things happened.” In our opinion this material is pitched at such a level of generality that it takes the matter no further.

73        We would allow the appeal on the ground of denial of procedural fairness in relation to the consideration taken into account by the Minister, the undermining of the integrity of the skilled migration program, in deciding whether he was satisfied that cancellation of the appellant’s visa was in the national interest.

Ground 2 — fettering of discretion

74        As to ground 2, that the Minister impermissibly fettered the exercise of his discretion, or inflexibly applied a policy or rule, as set out above, the appellant accepted that the Minister’s reasons did not in terms refer to the application of any “policy” but submitted that the Minister’s reasoning was to the effect that he was adopting a fixed and immutable presumption by reason of the very fact of the appellant’s criminal convictions which caused the appellant’s position to be beyond redemption and that strong countervailing considerations in his favour were incapable of overcoming that presumption, as was his minimal risk of re-offending. Thus, the appellant submitted, the Minister’s limited reasoning from which his conclusion was derived stripped his residual discretion of any operative content and, therefore, the Minister did not exercise his statutory power under s 501A(2) of the Act according to law.

75        In our opinion, the reasoning of the Minister in addressing the question of the national interest was evaluative. The Minister did not reason that it was always in the national interest to cancel the visa of a person with the appellant’s criminal convictions.

76        Neither, in relation to the consideration by the Minister of the exercise of his discretion, did the Minister reason that he would always cancel a visa where the visa holder had criminal convictions such as the appellant’s.

77        Neither, assuming it to be impermissible, did the Minister apply a test that where such an appellant was to be permitted to remain in Australia there must be no risk of recidivism. As the primary judge said, no such “test” was applied by the Minister. Rather, on the facts before him, the Minister concluded that there was a risk of the appellant re-offending and, although the risk of the appellant re-offending may be low, the Minister had regard to the nature of his offending and the harm should it be repeated in concluding that any level of risk was unacceptable and prevailed over all countervailing considerations.

78        As in Tewao v Minister for Immigration and Citizenship [2012] FCAFC 39; (2012) 126 ALD 185 at [33] the Minister’s assessment proceeded by reference to the particular facts and circumstances. We do not find it necessary otherwise to consider Tewao in this context as it turned, as each case must, on its own facts.

79        Even if the Minister applied a policy, the relevant legal constraint is that nevertheless he or she must apply the policy flexibly, that is, having regard to the facts and circumstances of the particular case and be ready in a proper case to depart from any applicable policy. The Minister did have regard to the particular facts and circumstances and there is no basis for submitting that he was not ready to depart from a policy.

80        This ground fails.

Conclusion

81        In our opinion, the appeal should be allowed, with costs. The orders of the primary judge should be set aside and in their place it should be ordered that the decision of the respondent Minister made on 3 September 2013 be set aside and the Minister restrained from acting on the decision. The respondent Minister must pay the costs of the appellant other than the costs of the appellant’s unsuccessful application to amend.

82        For completeness, we see nothing in the recent decision of the High Court in Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22 which affects the consideration of the national interest in the present appeal.

Associate:

Dated:    4 July 2014