FEDERAL COURT OF AUSTRALIA

Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

Introduction

1    On 25 August 2014, a judge of the Court dismissed an application by the appellant, Mr Henry Contreras, to quash a decision by the Administrative Appeals Tribunal (the Tribunal). The Tribunal had affirmed a decision by a delegate of the first respondent (the Minister) to cancel the appellant’s Return (Residence) Class BB Subclass 155 (Five Year Resident Return) visa under s 501(2) of the Migration Act 1958 (Cth) (the Act): see Contreras v Minister for Immigration and Border Protection [2014] FCA 912 (PJ). This is an appeal from the judgment of the Court.

2    The appellant was born in the Philippines and is now 34 years of age. He was 15 years of age when he left the Philippines for Australia, where he has lived since 12 July 1995. He came with his parents, both of whom are now Australian citizens living in this country. His brother and sister also reside in Australia.

3    The appellant is in a de facto relationship with an Australian citizen, and the couple have three children together, now aged 5, 8 and 10.

4    On 25 February 2013, a delegate of the Minister sent the appellant a notice of intention to consider the cancellation of his visa because he did not meet the character test on the basis of his substantial criminal record (as defined by s 501(7): see below). Further information regarding possible visa cancellation was sent to the appellant on 28 February and 20 March 2013.

5    On 3 October 2013, a delegate of the Minister determined that the appellant did not meet the character test and that his visa should be cancelled. The following day a representative of the Minister wrote to him to inform him of the decision.

6    On 16 October 2013, the appellant applied to the Tribunal to review that decision. On 19 December 2013, the Tribunal affirmed the delegate’s decision.

Legislative provisions

7    As at the relevant date, s 501(2) was in the following terms:

(2)    The Minister may cancel a visa that has been granted to a person if:

(a)    the Minister reasonably suspects that the person does not pass the character test; and

(b)    the person does not satisfy the Minister that the person passes the character test.

8    The character test is explained by ss 501(6) and (7), which provided as follows:

Character test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); …

Substantial criminal record

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; …

…

(Emphasis original)

9    Before the primary judge the appellant conceded that he did not pass the character test because he had a substantial criminal record as defined by s 501(7), having been “sentenced to a term of imprisonment of 12 months or more”: ss 501(6)(a) and 501(7)(c). The Tribunal set out the appellant’s criminal history at [4] of its reasons for decision:

Mr Contreras’ criminal record is extensive, commencing in October 1996 when he was charged with the possession of cannabis, using cannabis, unlawful possession and theft. At that time he had been in Australia for just a little over one year and he was 16 years of age. From that date up until his last conviction in October 2011, Mr Contreras committed in excess of 120 offences. While some of those were relatively minor, there are also a number of significantly serious offences. The more significant offences are as follows:

•    20 February 1998 – trafficking heroin (two charges) – no conviction recorded but a youth supervision order made for nine months

•    9 October 1998 – possessing cannabis – handles/receive/retain stolen goods – traffic heroin and – use heroin – possess regulated weapon (two charges) – nine months detention in a youth training centre

•    22 February 1999 – intentionally cause serious injury – 15 months detention in a youth training centre concurrent with existing sentence

•    17 March 1999 – possess drug of dependence – seven days detention in youth training centre

•    15 July 1999 – possess cannabis – possess regulated weapon – no penalty imposed

•    13 March 2001 – possess regulated weapon – fined $750

•    23 April 2001 – altering prescription for drug – wilful damage to property – theft from shop – criminal damage – unlawful assault – sentenced to 4 months imprisonment wholly suspended – fined

•    24 August 2001 – possession of controlled weapon without excuse – imprisonment 14 days wholly suspended

•    18 October 2001 – recklessly cause serious injury – assault with weapon – imprisonment 18 months

•    10 September 2003 – driving while suspended – possessing and using cannabis – one month prison sentence wholly suspended and fined

•    8 December 2003 – multiple drug offences – forging vehicle identifying number – failing to answer bail – handle/receive stolen goods – community based order for 12 months

•    10 June 2004 – several breaches of penalty orders – multiple fines and two sentences of one month imprisonment – several drug trafficking offences – imprisonment for up to 12 months – using heroin – drug trafficking offences – possession of unregistered firearm and ammunition without licence – imprisonment for 12 months – multiple fines for use and possession of drugs

•    13 June 2007 – possession of controlled weapon and possession of prohibited weapon – imprisonment two months wholly suspended and fine

•    25 June 2008 – possession and use of amphetamine – imprisonment for three months – deal in property suspected proceeds crime – imprisonment for three months wholly suspended for six months – breach of intervention order – imprisonment one month

•    13 November 2008 – driving while licence suspended – two months imprisonment – unlawful assault – assault with instrument – possession of controlled weapon without excuse – breach of suspended sentence – two months imprisonment

•    24 October 2011 – intentionally cause serious injury – prohibited possession of a firearm – traffic heroin – possess cannabis – imprisonment total term six years and four months

10    As 501(2) indicates, however, where a person fails the character test, the Minister and, in this case therefore, the Tribunal, retain a discretion whether or not to cancel his or her visa.

Direction No 55

11    On 25 July 2012, the Minister made Direction No 55 under s 499(1) of the Act entitled “Visa refusal and cancellation under s 501”. This Direction was current at the time the Tribunal made its decision, although it has since been revoked. Section 499(1) of the Act gives the Minister the power to give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. A person or body must comply with a direction under s 499(1): s 499(2A).

12    Direction No 55 had a number of sections. Section 1, comprising cll 1 to 6, was headed “Preliminary”. Clause 6 concerned Objectives (cl 6.1), General Guidance (cl 6.2) and Principles (cl 6.3). Clause 6.2(1) stated:

6.2    General Guidance

(1)    The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

13    Clause 6.3 set out the principles that were to inform a decision-maker. It stated:

6.3    Principles

(1)    Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2)    A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(3)    In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(4)    Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

(5)    Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

(6)    The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.

14    Section 2, covering cll 7 to 8, was entitled “Exercising the Discretion”. Clause 7 provided:

7.    How to exercise the discretion

(1)    Informed by the principles in paragraph 6.3 above, a decision-maker:

a)    must take into account the considerations in Part A …, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; and

b)     is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.

15    Direction No 55 explained, in clause 8, how the relevant considerations were to be taken into account:

8.    Taking the relevant considerations into account

(1)    Decision-makers must take into account the primary and other considerations relevant to the individual case, noting that there are differing considerations for visa holders and visa applicants as articulated in Parts A and B…

(2)    In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(3)    Both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa.

(4)    Primary considerations should generally be given greater weight than the other considerations.

(5)    One or more primary considerations may outweigh other primary considerations.

16    Part A consisted of cll 9 and 10 and applied in the appellant’s case. Clause 9, which applied to a visa holder, read as follows:

9.    Primary considerations – visa holders

(1)    In deciding whether to cancel a person's visa, the following are primary considerations:

a)    Protection of the Australian community from criminal or other serious conduct;

b)    The strength, duration and nature of the person's ties to Australia;

c)    The best interests of minor children in Australia;

d)    Whether Australia has international non-refoulement obligations to the person.

17    The Direction addressed each consideration separately. Relevantly, cl 9.1 dealt with the consideration in cl 9(1)(a) and provided that:

9.1    Protection of the Australian community

(1)    When considering protection of the Australian community, decision-makers should 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. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

(2)    Decision-makers should also give consideration to:

a)    The nature and seriousness of the person's conduct to date; and

b)    The risk to the Australian community should the person commit further offences or engage in other serious conduct.

18    Clause 9.1.1 explained how the nature and seriousness of criminal offending was to be considered. Clause 9.1.2 explained how the risk to the Australian community ought be evaluated, as follows:

9.1.2    The risk to the Australian community should the person commit further offences or engage in other serious conduct

(1)    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 conduct 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 reoffending; 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).

19    Clause 10 of the Direction set out “Other Considerations” that had to be taken into account in the case of visa holders, including:

a)    Effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;

b)    …

c)    …

d)    The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

i.    The person’s age and health;

ii.    Whether there are substantial language or cultural barriers; and

iii.    Any social, medical and/or economic support available to them in that country.

20    As already noted, the appellant’s native country was the Philippines.

The Tribunal’s decision

21    When it came to exercise its discretion as to whether to cancel the appellant’s visa, the Tribunal accepted that it was obliged to comply with Direction No 55. After referring to cll 6.3(1) – 6.3(4) and 6.3(6) of the Direction, the Tribunal stated:

10.    Informed by the Principles to which I have referred above, I must take into account, in this case, the considerations in Part A of the Ministerial Direction. I am also required to determine whether the risk of future harm by a non-citizen is unacceptable. As is stated in paragraph 7(1)(b) of the Ministerial Direction: This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.

(Emphasis original)

22    After referring to cll 8 and 9 of Direction No 55, the Tribunal went on to analyse the primary and other considerations in paragraphs 9 and 10 of the Direction. In relation to the first primary consideration – the protection of the Australian community from criminal or other serious conduct – the Tribunal first considered the principle that the Australian government was committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens (reasons at [13]). The Tribunal went on to address the nature and seriousness of the appellant’s criminal offending (reasons at [14] to [26]); the risk to the Australian community should the appellant commit further offences or engage in other serious conduct (reasons at [27] to [44]); the strength, duration and nature of the appellant’s ties to Australia (reasons at [45] to [54]); the best interests of children in Australia who may be affected by the decision (reasons at [55] to [69]); the effect on the appellant’s immediate family (reasons at [72] to [74]); and impediments that the appellant may face if removed from Australia (reasons at [75] to [79]).

23    After considering the remainder of the primary and other considerations, the Tribunal weighed up these matters, under the heading “Weighing up the Considerations”, stating:

80.    The first primary consideration, the protection of the Australian community, weighs heavily in favour of cancelling Mr Contreras’ visa. His criminal offending, which commenced a little over one year after he arrived in Australia, has been ongoing, extensive and extremely serious. In fact, the seriousness has increased since the offending commenced such that Mr Contreras’ violent conduct has led to an attack with a kitchen knife which left the victim seriously injured and the shooting of one person, who it appears was lucky to have survived that incident. Mr Contreras has been convicted of numerous weapons offences since 2003.

81.    All of his offending occurred despite a number of sentences involving detention and two formal threats by the Minister to cancel his visa. Despite promises that he would reform and cease using drugs when threatened with cancellation of his visa, no sooner had the threat passed when Mr Contreras resumed his offending without concern for any other persons, including his children and partner, who he must have been aware would be affected by that conduct.

82.    I find that Mr Contreras presents an unacceptable risk to the Australian community should he remain in this country. Should he resume his violent reoffending, any risk of that occurring is unacceptable. According to the most recent assessment report which I had in evidence, made on 28 May 2013, Mr Contreras remains in the moderate risk category regarding violent recidivism. This risk will remain until such time as Mr Contreras has overcome his drug addiction. Although he is currently on a methadone program, he was detected as having used cannabis while in Fulham Correction Centre some 12 months ago.

83.    The second primary consideration, an assessment of the strength, duration and nature of his ties to Australia, must weigh in favour of not cancelling Mr Contreras’ visa. This consideration may have carried more weight except for the fact that he commenced offending soon after arriving in Australia and that, despite claimed strong ties to his family, partner and children, and former notifications from the Minister threatening to cancel his visa if his conduct continued, his offending continued unabated, and in fact escalated. Other than his immediate family, Mr Contreras does not appear to have any other significant connections to Australia.

84.    The third primary consideration, the best interests of children in Australia, which would weigh substantially in favour of not cancelling Mr Contreras’ visa, must be given less weight because it is conditional on Mr Contreras remaining drug-free. Should that not occur, the effect on his partner and children would undoubtedly be deleterious rather than of some benefit. The current evidence regarding Mr Contreras’ drug addiction is that the risk that he will resume a drug habit remains high. Furthermore, given Mr Contreras’ past behaviour and significantly long terms of incarceration, his interaction with the children has been minimal, most of it being in the course of visits while he was in prison. There was no evidence of Mr Contreras playing a positive parental role while outside of prison.

85.    As for the other considerations, which are generally given less weight than the primary considerations, the effect on Mr Contreras’ immediate family is most significant. The cancellation of his visa and his return to the Philippines will impact on his partner and their children. That would also cause significant pressure to be placed on Mr Contreras’ mother and father and other immediate family members to assist in supporting the children. I have also referred to some concerns about Mr Contreras’ health and job prospects on return to the Philippines. That evidence does not permit me to find that these considerations should be given significant weight.

86.    I find that the protection of the Australian community outweighs all of the other considerations which support Mr Contreras remaining in Australia. That is because of the nature and the seriousness of his offending and the consequences on the Australian community should he re-offend. His remaining in Australia poses an unacceptable risk. Despite having been warned on two prior occasions, in 2001 and 2005, that his continued offending would result in cancellation of his visa, it appears Mr Contreras has not stopped for one moment to consider what the effect might be on other persons, particularly his children.

24    The Tribunal concluded that the decision of the delegate to cancel the appellant’s visa was the preferable decision and affirmed that decision.

The decision of the primary judge

25    The primary judge rejected the appellant’s primary submission that the Tribunal had failed to ask itself the right question and that its decision suffered from the same jurisdictional error that had been identified by North J in Williams v Minister for Immigration and Citizenship (2013) 136 ALD 299 at 311 [42] to [44] (Williams 2013). Her Honour distinguished that case and held (PJ at [40]) that:

The reasons of the Tribunal are meant to inform and must be read as a whole: [Minister for Immigration and Ethnic Affairs v] Wu Shan Liang [(1996) 185 CLR 259] at 272. The reasons, read fairly, demonstrate that the Tribunal started and finished with the right question and, in doing so, exercised the discretion in the manner prescribed by paragraph 7 of Direction No 55.

26    The primary judge also rejected the appellant’s submission that the Tribunal’s failure to undertake the required balancing approach led the Tribunal into error in considering the primary considerations. Her Honour not only held that the Tribunal undertook the required balancing exercise but also held that the Tribunal did not err in its approach to the primary considerations. Her Honour held that the Tribunal’s reasoning did “not disclose a ‘conflation of the risk of reoffending with the likelihood of future harm’, but instead demonstrate[d] that the Tribunal proceeded by separately considering each of the relevant aspects of Direction No 55”: PJ at [46]. Further, her Honour stated (PJ at [47]) that:

As submitted by the Minister, the Tribunal balanced or weighed the relevant considerations (particularly at [80]-[86]), and found that the level of potential harm meant that “[his] remaining in Australia poses an unacceptable risk”. The Tribunal found that “the protection of the Australian community outweighs all of the other considerations which support [the Applicant] remaining in Australia … because of the nature and the seriousness of his offending and the consequences on the Australian community should he re-offend”: at [86] (emphasis added). In my view, that reasoning demonstrates that the Tribunal considered the level of potential harm and balanced it against the other relevant considerations.

(Italics original)

27    Accordingly, as noted, the primary judge dismissed the appellant’s application.

Appellant’s submissions

28    In substance, the appellant’s argument on appeal was that the primary judge had erred in not finding that there was jurisdictional error in the Tribunal’s decision because the Tribunal had failed to comply with Direction No 55, as s 499(2A) of the Act required it to do. The appellant submitted that cl 7(1)(b) of Direction No 55 required the Tribunal to determine whether the risk of future harm by a non-citizen is unacceptable, by a “balancing exercise”, involving three identified components. The appellant accepted that the Tribunal had considered two of these components (namely, the likelihood of any future harm and the extent of the potential harm should it occur), but contended that the Tribunal had not addressed the third component – the extent to which, if at all, any risk of future harm should be tolerated by the Australian community. It followed, so the appellant argued, that the Tribunal had not conducted the balancing exercise in accordance with cl 7(1)(b) and had not determined whether the risk of future harm by a non-citizen was unacceptable in the way required by the Direction (and therefore the Act). The appellant stated that this was “the essential point” of his appeal. The appellant drew attention to the fact that this third element of the exercise was framed in normative rather than factual terms and that “the focus … is on the Australian community”. The appellant contended that the Tribunal’s reference to the question for determination in cl 7(1)(b) was not enough because the Tribunal had made no findings and expressed no opinions about this third element.

29    There was, so the appellant submitted, “a clear and strong foundation for an inference that the Tribunal did not consider this matter in determining that the risk of future harm was ‘unacceptable’”; and that it was “more probable than not that the Tribunal did not consider the requisite normative question that forms part of the mandated ‘balancing process’ in cl 7(1)(b) of the Direction, and therefore failed to ‘comply’ with the Direction in accordance with s 499(2A) of the Act”.

Minister’s submissions

30    The Minister accepted that cl 7(1)(b) of Direction No 55 required the Tribunal to determine whether the risk of future harm was unacceptable, in the way described. The Minister argued that, in this connection, cl 9.1.2 was relevant since it specifically addressed the balancing factors including the Australian community’s tolerance for any risk of future harm. Referring to paragraphs [82] and [86] of the Tribunal’s reasons, the Minister contended that the Tribunal had in fact carried out the requisite balancing process.

31    The Minister also contended that Buchanan J’s description of the significance of cll 7(1)(a) and (b) in Minister for Immigration and Border Protection v Lesianawai (2014) 143 ALD 31 (Lesianawai) at 47 [41] to [43] was to be preferred to that of Mortimer J in Williams v Minister for Immigration and Border Protection (2014) 142 ALD 76 (Williams 2014) at 89 [41]. The Minister also invited the Court to distinguish the decision of North J in Williams 2013.

Consideration

32    According to the preamble to Direction No 55, the Direction contains “General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to cancel or refuse a person's visa under section 501”. Despite this, Direction No 55 is, at numerous points, obscure, possibly inconsistent and, generally speaking, difficult to comprehend. We therefore noted with interest that, as advised by counsel for the Minister, Direction No 55 has now been revoked and replaced by a new Direction under s 499 of the Act.

33    At the time of the Tribunal’s decision, however, cl 7(1)(b) of Direction No 55 required the Tribunal to determine whether the risk of future harm by a non-citizen is unacceptable. There can be no doubt that the Tribunal in fact made this determination. At paragraph [82] of its reasons for decision, it stated:

I find that Mr Contreras presents an unacceptable risk to the Australian community should he remain in this country. Should he resume his violent reoffending, any risk of that occurring is unacceptable. …

34    At paragraph [86], it further stated:

I find that the protection of the Australian community outweighs all of the other considerations which support Mr Contreras remaining in Australia. That is because of the nature and the seriousness of his offending and the consequences on the Australian community should he re-offend. His remaining in Australia poses an unacceptable risk. …

35    Earlier, having referred to cll 9 and 10 of Direction No 55, the Tribunal also stated:

    “I also accept the Minister’s contention that Mr Contreras’ conduct is of a nature and extent which presents an unacceptable risk of harm to the Australian community” (reasons at [23]).

    “Having unlawful access to firearms is of grave concern in this case. In fact, the harm which could be caused if his conduct were repeated is so serious that any real risk that it may be repeated would be unacceptable” (reasons at [28]).

    “In my opinion, the evidence supports th[e] contention [that the consequences of Mr Contreras reoffending are extremely grave] and I find that any risk of him re-offending is wholly unacceptable to the Australian community” (reasons at [44]).

36    We accept that cl 7(1)(b) requires a balancing exercise to be undertaken, which involves consideration of the three components to which cl 7(1)(b) refers. As noted, the appellant’s argument on appeal is that the Tribunal did not make its determination in the right way, because it did not include, in the requisite balancing exercise, consideration of “the extent to which, if at all, any risk of future harm should be tolerated by the Australian community”. Notwithstanding the excellent advocacy of pro bono counsel, we reject this proposition, for the following reasons.

37    First, the Tribunal clearly understood its fundamental task. Thus, at paragraph [6] of its reasons, it stated:

The only question which I am required to resolve is whether the discretion to cancel Mr Contreras’ visa should be exercised. In doing so, I must comply with written directions made by the Minister (s 499(2A) of the Migration Act). The current directions made by the Minister on 28 July 2012 are known as Direction No 55 (the Ministerial Direction).

38    Second, the Tribunal expressly and very clearly recognised what Direction No 55, and in particular cl 7(1)(b), required, stating at paragraph [10]:

Informed by the Principles to which I have referred above, I must take into account, in this case, the considerations in Part A of the Ministerial Direction. I am also required to determine whether the risk of future harm by a non-citizen is unacceptable. As is stated in paragraph 7(1)(b) of the Ministerial Direction: This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.

(Italics original)

The italicisation highlights the “balancing exercise” that the Tribunal was required to undertake and the Tribunal’s recognition that it was to adopt this process in determining whether the risk of future harm by the appellant is unacceptable.

39    In this case, to accept the appellant’s contention, we would need to be persuaded that, although the Tribunal knew what cl 7(1)(b) required, it nonetheless did not act in conformity with cl 7(1)(b). As the appellant observed, it does not follow merely from the fact that the Tribunal correctly stated what was required of it that the Tribunal in fact did what it was required to do. Had the Tribunal stated its task incorrectly, however, that would be strongly indicative of error. Conversely, the correct statement of its task under cl 7(1)(b), with consistent reasoning, would support an inference that there was no error on the Tribunal’s part.

40    We accept that the Tribunal did not state expressly that, having undertaken a balancing exercise involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community, it determined that the risk of future harm by the appellant is unacceptable. Nor did the Tribunal in terms make a finding about “the extent to which, if at all, any risk of future harm should be tolerated by the Australian community” (emphasis added). But when the Tribunal’s reasons are considered as a whole and “in a practical and realistic manner” (to quote Flick J in Salahuddin v Minister for Immigration and Border Protection (2013) 140 ALD 1 (Salahuddin) at 7 and 8 [22]), we consider it tolerably clear that the Tribunal undertook the requisite balancing exercise. Whilst the Tribunal made no express finding in normative terms about the community’s tolerance of any risk of future harm, the Tribunal’s consideration of this component of the balancing exercise is readily inferred from the Tribunal’s reasons, considered in their entirety and having regard to the whole of Direction No 55.

41    At various points, the provisions of Direction No 55 overlap or flow into one another. Thus, by virtue of cl  6.3(3), the Tribunal was required to bear in mind that “[i]n some circumstances, criminal offending … and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa”. This principle apparently informs the Tribunal’s finding in the last sentence of paragraph [28] of its reasons and is also relevant to the determination and the balancing exercise in cl 7(1)(b). Thus, the Tribunal said in this paragraph:

There cannot be any doubt about the fact that should Mr Contreras engage in similar criminal conduct in the future, the nature of the harm that could be suffered by individuals or the Australian community is extremely serious. Upon release from prison, should Mr Contreras resume his drug habit, which would most likely lead to drug trafficking given that his opportunities for full time employment following release appear to be remote, it is foreseeable that he would once again arm himself for protection as he claimed he did in the past. Having unlawful access to firearms is of grave concern in this case. In fact, the harm which could be caused if his conduct were repeated is so serious that any real risk that it may be repeated would be unacceptable.

42    Similarly, cl 9 set out a number of primary considerations that the Tribunal was required to consider, including protection of the Australian community from criminal or other serious conduct. Such matters were also relevant to the determination and the balancing exercise in cl 7(1)(b). By virtue of cll 9.1 and 9.1.1, the Tribunal was in this context to consider the nature and seriousness of the conduct in question; and, under this heading, by virtue of cl 9.1.1(f), “[t]he frequency of the person’s offending and whether there is any trend of increasing seriousness”. With this clearly in mind, the Tribunal stated at paragraph [23]:

Furthermore, the Ministerial Direction provides that the frequency of a person’s offending and whether there is any trend of increasing seriousness is a factor to be taken into account. Ms Graham submitted that in the 13 years prior to being taken into prison for his most recent and most serious offence, the longest period that Mr Contreras had gone without offending was two years. She also submitted that a number of those offences were committed while serving out sentences for prior offending. I agree with that submission because that is what Mr Contreras’ criminal record discloses. Furthermore, I agree that the seriousness has increased, particularly because Mr Contreras has obtained firearms on more than one occasion since about 2004. That evidence not only discloses that Mr Contreras has the ability to obtain such a weapon, but also that he is prepared to use it. That, of course, is a serious concern should Mr Contreras remain in Australia. I also accept the Minister’s contention that Mr Contreras’ conduct is of a nature and extent which presents an unacceptable risk of harm to the Australian community. It is a very significant factor in the exercise of the Minister’s discretion.

43    The Tribunal’s statements in paragraph [44] also reflect the matters with which cll 9.1, 9.1.1 and 9.1.2 are concerned, including the risk to the Australian community should the person commit further offences. By virtue of cl 9.1.2, the Tribunal was bound to 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”. These clauses clearly overlap with what is required under cl 7(1)(b). At paragraph [44] of its reasons, the Tribunal stated:

The Minister also contended that due to the extent and seriousness of the crimes committed by Mr Contreras and in particular the numerous violent offences involving use of a weapon including firearms, the consequences of him reoffending are extremely grave. In my opinion, the evidence supports that contention and I find that any risk of him re-offending is wholly unacceptable to the Australian community.

44    We infer from the Tribunal’s analysis, including its earlier remarks mentioned above, that the Tribunal considered cl 6.3(3) applicable in the appellant’s case: see [41] above. Further, bearing in mind the statement of principle in cl 6.3(3), it can readily be inferred that the last sentence of paragraph [44] of the Tribunal’s reasons addresses the Australian community’s tolerance for the risk of future harm, as it was required to do in cl 7(1(b), as well as the matters with which cll 9.1, 9.1.1 and 9.1.2 were concerned. Although not expressed in normative terms, the normative factor of the kind to which cl 7(1)(b) directed attention is encapsulated in the generality of the last sentence of paragraph [44] and, indeed, of paragraph [28] of the Tribunal’s reasons. We infer from these paragraphs that the Tribunal went through what the appellant’s counsel termed the “gateway” that cl 7(1)(b) prescribed before making the determination that the risk of future harm by the appellant is unacceptable. That is, the Tribunal in fact undertook a balancing exercise involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community before reaching this conclusion.

45    As the appellant submitted, an administrative decision-maker’s obligation to provide reasons is important for a number of reasons, including that the provision of reasons assists a court in performing its supervisory functions where it has jurisdiction to do so: see, for example, Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212, at 242 [105] (Kirby J). At the same time, as the primary judge acknowledged, it is well-accepted that the reasons of an administrative decision-maker must not be “scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

46    Of course, it can sometimes be inferred from a failure to make a finding that the Tribunal did not regard such a finding as material to its decision, which may in turn indicate that there has been a failure to address the correct question or other jurisdictional error: see, for example, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 331 and 332 [10] (Gleeson CJ); 338 [35], 340 [44] (Gaudron J); 346 [69] (McHugh, Gummow and Hayne JJ). For the reasons already outlined, we do not consider that this is such a case.

47    We consider that the present case is of the type described by French, Sackville and Hely JJ in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641 [47] where it was said:

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.

48    Such an approach was also taken in Salahuddin at 6-8 [19] to [24] (Flick J, with Katzmann and Wigney JJ agreeing), where at 6 [19], Flick J said:

… These words of caution have oft been repeated: eg, Daniel v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 205 ALR 198 at [32] per Goldberg J; SZQMA v Minister for Immigration and Citizenship (2012) 127 ALD 305 at [39] per McKerracher J; MZYPA v Minister for Immigration and Citizenship (2012) 128 ALD 93 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.

49    In the present case, the Tribunal gave careful and detailed reasons for its decision. In conformity with cl 7(1)(a) of Direction No 55, the Tribunal expressly considered all the considerations mandated by cl 9, so far as relevant to the appellant’s situation, which included: protection of the Australian community, including the nature and seriousness of the conduct, and the strength, duration and nature of the appellant’s ties to Australia (cll 9(1)(b) and 9.2), the best interests of children in Australia (cll 9(1)(c) and 9.3) and the international non-refoulement obligations (cll 9(1)(d) and 9.4). The Tribunal also expressly considered some other considerations in accordance with cl 10, such as the effect on the appellant’s immediate family and impediments that the appellant may face if removed from Australia. As noted, in the course of its discussion, it made a number of findings relevant to cl 7(1)(b) of Direction No 55, some in the course of its consideration of cl 9.1.2, the substance of which overlapped with cl 7(1)(b).

50    As indicated already, cl 9.1.2 explained when the risk of future harm is unacceptable to the Australian community – which is also the focus of the determination to be made under cl 7(1)(b). It is in this context that the Tribunal’s statement, in paragraph [82] of its reasons, under the heading “Weighing Up the Considerations”, falls to be considered. In that paragraph, the Tribunal found that “Mr Contreras presents an unacceptable risk to the Australian community should he remain in this country”. The Tribunal continued:

… Should he resume his violent reoffending, any risk of that occurring is unacceptable. According to the most recent assessment report which I had in evidence, made on 28 May 2013, Mr Contreras remains in the moderate risk category regarding violent recidivism. This risk will remain until such time as Mr Contreras has overcome his drug addiction. Although he is currently on a methadone program, he was detected as having used cannabis while in Fulham Correction Centre some 12 months ago.

51    The Tribunal’s finding at paragraph [86] must also be read in light of its evidently careful consideration of the matters to which it had previously referred. Thus, the Tribunal expressly found that “the protection of the Australian community outweighs all of the other considerations which support Mr Contreras remaining in Australia”. The Tribunal explained:

That is because of the nature and the seriousness of his offending and the consequences on the Australian community should he re-offend. His remaining in Australia poses an unacceptable risk. Despite having been warned on two prior occasions, in 2001 and 2005, that his continued offending would result in cancellation of his visa, it appears Mr Contreras has not stopped for one moment to consider what the effect might be on other persons, particularly his children.

52    Whilst it would have been preferable for the Tribunal in its conclusions to deal expressly with each of the three elements in the cl 7(1)(b) calculus, nonetheless the Tribunal’s reasons manifest that it specifically and repeatedly directed its attention to the cl 7(1)(b) question, namely, whether there is an unacceptable risk of future harm if the appellant were to remain in Australia. We would infer from the Tribunal’s discussion of the evidence that led it to answer this question affirmatively that the Tribunal considered the three matters to which cl 7(1)(b) directed its attention. In particular, having regard to cll 6.3(3), 9.1, 9.1.1 and especially 9.1.2, we would infer from those parts of the Tribunal’s discussion to which we have referred that the Tribunal in fact considered the likelihood of any future harm, the extent of the future harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.

53    We agree with the primary judge that the decision of North J in Williams 2013 is distinguishable from the present case. In Williams 2013, his Honour held that the Tribunal did not address the question whether the risk of future harm by the non-citizen was unacceptable, because the Tribunal only “made a passing reference” to cl 7 of the Direction and did not ask the question “whether the risk of future harm is unacceptable”: see Williams 2013 at 311 [43]. The case before us is different because the Tribunal did much more than make “passing reference” to cl 7(1)(b); the Tribunal expressly acknowledged that it was required to determine whether there was an unacceptable risk of future harm and made this determination in the manner it was required to do.

54    We have not found it necessary in this case to resolve the apparent differences about the role of cll 7(1)(a) and (b) as expressed by Mortimer J in Williams 2014 on the one hand and Buchanan J in Lesianawai on the other. Further, as we noted above, Direction No 55 has now been revoked and replaced by another Direction.

Disposition

55    For the foregoing reasons, we would dismiss the appeal, with costs.

56    The Court notes that the appellant was ably represented by pro bono counsel in this appeal and expresses its gratitude for the assistance given to the Court.

Associate:

Dated:    1 April 2015