FEDERAL COURT OF AUSTRALIA

Fraser v Minister for Immigration and Border Protection [2015] FCAFC 48

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

THE COURT:

1    This appeal concerns the exercise by the respondent (the Minister) of a discretion to cancel the appellant’s visa. The immediate circumstances leading to that decision were described by the primary judge as follows:

2    Mr Fraser is a 22 year old New Zealand citizen who arrived in Australia in 1998, aged six, with his mother and sister. As is usual in such cases he was granted a particular kind of visa which is granted to New Zealand citizens and which permits them to stay indefinitely in Australia.

3    On 25 November 2011 Mr Fraser was involved in a disturbing road rage incident at Homebush in Sydney involving the driver of another car who had honked his horn at Mr Fraser after Mr Fraser had driven erratically in front of him. This elicited from Mr Fraser a display to the other driver of the middle finger of his right hand followed by his then hitting the side of his own car with the same hand. Mr Fraser then gestured for the other driver to go around him which he did. Mr Fraser followed behind until the other driver arrived at a private car park. The other driver got out of the car to go to the shops and left his wife and three children in the car. Mr Fraser then arrived in the car park and parked next to the other car with his boot open. Upon the return of the other driver to his car Mr Fraser said to him ‘Do you remember me brother’ to which the other driver said ‘Yes’. Mr Fraser then walked to the boot of his car. Fearful he was about to be assaulted in front of his own family the other driver looked around to find something he could protect himself with and found a wooden broom. Meanwhile Mr Fraser had produced a metal baseball bat with which he then proceeded savagely to assault the other driver, at first on the arm and shoulder and thereafter around the head and even when the man was down. The other driver became unconscious and Mr Fraser drove off. He was arrested later that day and did not obtain bail.

4    The other driver suffered very serious injuries which fortunately were not fatal, as they could easily have been. Mr Fraser was then charged on indictment with the offence that he had wounded the other driver with the intention of committing grievous bodily harm. On 9 August 2012 he pleaded guilty to the lesser charge of reckless wounding which was accepted by the Crown in full discharge of the indictment. The maximum penalty for this offence was 7 years with a standard non-parole period of 3 years. On 28 September 2012 the District Court sentenced Mr Fraser to 4 years imprisonment backdated to the time he was arrested with a non-parole period of 2 years. This meant that Mr Fraser would be eligible for parole on 24 November 2013. It appears he was released on parole at or around that time.

2    As a result of this latest conviction, the appellant did not pass the character test set out in s 501 of the Migration Act 1958 (Cth) and his visa was liable to be cancelled at the discretion of the Minister.

3    The appellant’s criminal record was not confined to the road rage incident. In the statement of reasons for his decision to cancel the appellant’s visa, the Minister referred to the appellant’s criminal history and said:

19.    In view of Mr FRASER’s criminal history, particularly his violent offending, his disregard for judicial orders and the limited action to address his anger and mental health issues, I find that there remains a risk that Mr FRASER will re-offend. I find that if the conduct was to be repeated, serious harm could result.

…

38.    In reaching my decision, I gave considerable weight to the violent offending by Mr FRASER and the pattern of his repeat offending. The sentences Mr FRASER has received reflect the seriousness of his offending conduct against the community. If Mr FRASER were to engage in similar offending the harm would be very serious. I consider that any risk of the conduct and the harm being repeated is unacceptable.

4    Proceedings were commenced in this Court which were heard by Perram J. In those proceedings it was argued that the Minister had failed to consider relevant matters and that there were grounds for a reasonable apprehension of bias arising from particular statements made by the Minister about visa cancellation. Both arguments were rejected.

5    The first argument was rejected upon an analysis of the Minister’s stated reasons.

6    The second argument was rejected because Perram J felt bound to do so, having regard to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (“Jia Legeng”).

7    The grounds of the appeal which require attention (which were amended with leave at the hearing of the appeal) are:

1.    The Primary Judge erred in finding that the Minister had not failed to properly assess, or that he had not failed to give proper, genuine and realistic consideration to, the risk of harm to the Australian community.

2.    The Primary Judge erred in finding that he was bound by Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 to reject the Appellant’s argument that the Minister’s decision was affected by apprehended bias.

3.    The Primary Judge erred in failing to find that the Minister’s decision was affected by jurisdictional error due to a reasonable apprehension of bias.

8    In our view, none of the grounds advanced will sustain the appeal.

9    Perram J accepted an argument that the Minister was bound to consider the protection of the Australian community. His Honour concluded that the Minister had done so, in a way which was “more than merely formulaic”, and that the Minister had given the matter proper consideration.

10    In the present appeal the Minister put the underlying premise in issue. The Minister contended that a recent decision of another judge of this Court (Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 (“Tanielu”)) to the effect that the Minister was bound to consider the protection of the Australian community was wrong and should not be followed. It is not necessary to express an opinion about this contention because it does not arise for consideration on an analysis of the present case.

11    His Honour set out a number of paragraphs from the Minister’s statement of reasons including [19] and [38] set out earlier. His Honour said (at [23] and [24] of the judgment):

23        … The fact is that the Minister did take into account the risk to the community presented by Mr Fraser in a reasonably detailed way in the paragraphs set out above. I cannot say that he has merely adverted to the matter or that his consideration of it was entirely formal. Mr Johnson submitted that the words in [19] of the decision ‘I find that there remains a risk that Mr FRASER will re-offend’ was a mere conclusory statement disconnected from analysis. No doubt that would be true if it occurred in isolation but it is evident that the conclusion is drawn from the preceding four paragraphs.

24        It seems to me that the consideration of the risk to the community given by the Minister was genuine and proper. …

12    Then his Honour referred in some detail to the analysis in Tanielu and distinguished that case from the present one as follows:

26        In essence, her Honour concluded that whilst the Minister had recited the facts which brought Mr Tanielu within the purview of the character test he had not undertaken an actual assessment of the risk posed to the community by reason of re-offending.

27        I do not think that can be said in the present case. A number of matters indicate that the Minister was focussed on what might happen in the future. These were Mr Fraser’s breach of judicial orders and the limited action the Minister thought he had taken to address his anger and mental health issues. Both of these were rational reasons to think, as the Minister concluded, that he might re-offend. In Tanielu, by contrast, the Minister reasoned to his conclusion that there was a risk of re-offending more or less solely by reason of the fact that Mr Tanielu had a criminal record.

13    On the present appeal, particular attention was given to the Minister’s observation, recorded at [19] of the statement of reasons, that there had been “limited action to address [the appellant’s] anger and mental health issues”. Focussing upon that observation, a number of contentions were advanced to the effect that the Minister did not address all available material, did not pay sufficient regard to the need to make an assessment about what was necessary for the protection of the Australian community, did not assess the actual level of risk which the appellant might pose if he remained in Australia and that the Minister had failed to make appropriate enquiries about the appellant’s conduct since being released on parole in November 2013, five months or so before the Minister’s decision.

14    Those contentions must all be assessed against the requirement to demonstrate jurisdictional error by the Minister before judicial intervention would be justified.

15    It is convenient to deal first with the proposition that the Minister was bound to make further enquiries. We do not accept that the Minister was under a duty of that kind. The most recent relevant statement by the High Court about an issue of this kind (which considered a number of decisions of this Court) was in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, where the High Court said (at [25]):

[25]    Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. …

(Footnote omitted.)

16    The High Court went on (at [26]) to conclude, on the facts of that case:

[26] … there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error.

17    The same conclusion is inevitable in the present case. The Minister’s decision was based on all the material which was available to him, including material supplied by the appellant. He was not under a free standing duty to make further enquiries. The fact that further enquiries were not made did not signify that the Minister had failed to carry out the statutory task.

18    For similar reasons, reliance by the appellant on Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (“Peko-Wallsend”) and Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346 (“Lu”) is unavailing. In Peko-Wallsend, Mason J referred to an obligation to take into account the most up-to-date material which was actually or constructively before a decision-maker. In Lu, Sackville J (with whom Black CJ agreed on this point) referred to the potential consequences (jurisdictional error) of the provision of incorrect information about an important matter, saying (at [55]):

55    … It is unlikely that Parliament contemplated that the Minister could exercise a power having such drastic consequences for a permanent Australian resident on the basis of incorrect information as to the offences committed by the visa holder and the sentences imposed for those offences. It follows that if the Minister fails to take into account a visa holder’s correct criminal record because the Department provides incorrect information, ordinarily the Minister will have failed to act in accordance with the requirements of s 501A(2) and therefore will have acted in excess of jurisdiction.

19    In the present case, no incorrect information of that character was identified.

20    There was no jurisdictional error in not making further enquiries and there was no jurisdictional defect in the process followed.

21    Furthermore, it is clear from [19] of the Minister’s statement of reasons that the observations made at that point were directed to a conclusion that the appellant posed a risk of re-offending. As Mr Johnson (appearing for the appellant) accepted, a conclusion in those terms is irresistible. We reject the submission that the Minister was obliged to quantify the risk beyond the conclusion stated in [38] (set out earlier) that the risk was unacceptable, having regard to its potential consequences. To the references already given, we would add [41] of the Minister’s decision:

41.    After taking all relevant considerations into account, I find that there is an unacceptable risk of harm to individuals or the Australian community if Mr FRASER were to re-offend whilst remaining in Australia and this risk outweighs the countervailing factors already addressed.

22    It is apparent from this conclusion that the Minister gave direct attention to the question of the protection of the Australian community, and that he did so by reference to the particular circumstances of the appellant.

23    The first ground of appeal therefore fails.

24    As to the second ground of the appeal, his Honour the primary judge was, with respect, correct to conclude that Jia Legeng was a complete answer to the appellant’s claim of bias by prejudgment against the Minister.

25    The complaint was that the Minister had indicated in various public statements that visa holders who committed crimes in Australia could expect to be treated without much sympathy.

26    The Minister’s statements were summarised at first instance by Perram J in the following way:

34        The reasonable apprehension of bias was said to arise because a reasonable person would think that the Minister was indicating that he would take a tough stance on visa cancellations in respect of those who have committed a crime and that they should not expect to stay in Australia; further, that he was concerned about the leniency of the Tribunal and would be deciding all cases himself so as to ensure that persons in the position of Mr Fraser would have their visa’s cancelled. Perhaps a compendious way of putting these points is that the Minister proposed to make sure that people such as Mr Fraser did not get to remain in Australia on his watch.

27    Perram J obviously felt that the Minister’s statements indicated a degree of predisposition that went too far. However, his Honour accepted (as he was bound to do) that the legal test to be applied was revealed in Jia Legeng and that, when that test was applied, a conclusion of apprehended bias, or jurisdictional error was not available.

28    On the appeal, Mr Johnson argued that his Honour’s finding was a factual one and therefore should have been applied to reach a conclusion of apprehended bias on the facts.

29    We do not think his Honour was intending to make a factual finding divorced from the legal standard to be applied. Nor, for the same reason, is it necessary for us to express any view about the matter because the question (as his Honour correctly appreciated) is decisively and authoritatively concluded by Jia Legeng in favour of the Minister.

30    In Jia Legeng, Hayne J (with whom Gleeson CJ and Gummow J agreed on this issue) said (at [188]-[192]):

188    Section 501(2) of the Migration Act (in the form in which it stood at the time of the Minister’s decisions concerning these visa holders) was engaged if “having regard to” either “the person’s past criminal conduct” or “the person’s general conduct” the Minister was “satisfied that the person is not of good character”. The subject about which the Minister was required to be satisfied was a subject which required the formation of a value judgment. It required the development of a view about what kinds of conduct are, or may be, inconsistent with being of good character. It obviously permitted the formation of a view that, in the absence of some countervailing consideration, certain kinds of past criminal conduct would sufficiently demonstrate that a person was not of good character. If the Minister formed such a view, and announced that this was the view that had been formed and would be applied in the administration of the Act, there could be no suggestion that the Minister had thereby prejudged any application which was to be made. The most that could be said is that the Minister had stated an understanding of what was meant by the statutory expression “is not of good character” and had indicated how the Act would be administered. So long as the meaning adopted revealed no error of law (which it would if the meaning assigned lay outside the permissible range of circumstances that could be embraced by the expression) there could be no challenge to what was done. Given that the decision-maker is the Minister, the expression can be seen to embrace a wide range of permissible views.

189    Moreover, the Act, by authorising the Minister to reach the relevant value judgment by having regard to “the person’s past criminal conduct”, as opposed to “the person’s general conduct”, permitted the Minister to form the view that certain kinds of past criminal conduct necessarily and inevitably demonstrated that a person was not of good character. Again, so long as the meaning which was thus assigned to the expression “is not of good character” revealed no error of law, the fact that the Minister announced that he or she proposed to administer the Act according to that understanding could not be said to constitute the prejudgment of any particular case that may later arise.

190    There is no prejudgment in such a case because of the nature of the statutory task. It is to reach a degree of persuasion (satisfaction) that a value-laden standard (is not of good character) is met. The determination of that standard is not a task which the Act requires the Minister to undertake wholly anew each time it is suggested that there may be a case for the exercise of the discretionary power, conferred by the Act, to cancel or refuse a visa. It was open to the Minister to determine the standard to be applied in a way that left little or no room for debate about its application in an individual’s case.

191    Determining the standard in that way would not fetter the exercise of a discretion. The relevant discretion which falls for exercise is the discretion to refuse to grant or, in these cases, to cancel a visa if s 501(2) applied to the person. All that the Minister does, in the circumstances posited, is announce the particular construction that the necessarily imprecise statutory standard will be given in certain kinds of case.

192    Once it is recognised that there are elements of the decision-making process about which a decision-maker may legitimately form and hold views before coming to consider the exercise of a power in a particular case, it is evident that the area within which questions of actual or apprehended bias by prejudgment may arise is reduced accordingly. Indeed, in a context such as the present, if there is a cause for complaint, analysis will often reveal that the complaint is one of error of law in the construction of the relevant provision, not one of bias or apprehended bias. Neither Mr Jia nor Mr White could, or did, put his case in that way. The content which the Minister’s decisions in these cases showed he gave to the expression “not of good character” was plainly open.

(Emphasis in bold added.) (Emphasis in italics in original.)

31    Gleeson CJ and Gummow J said (at [98]-[100], [102] and [104]-[105]):

98    The new case of apprehended bias requires closer attention to the content of the requirements of natural justice, and the concept of bias.

99    In Ebner v Official Trustee in Bankruptcy the majority judgment, referring to the law as to procedural fairness, and apprehended bias, warned:

“The application of the principle in connection with decision makers outside the judicial system must sometimes recognise and accommodate differences between court proceedings and other kinds of decision making.”

100    We agree with the observations on this subject made by Hayne J in his reasons for judgment in the present case.

…

102    … As the circumstances of the radio interview demonstrate, the Minister himself can be drawn into public debate about a matter in respect of which he may consider exercising his powers. He might equally well have been asked questions about the cases in Parliament. The position of the Minister is substantially different from that of a judge, or quasi-judicial officer, adjudicating in adversarial litigation. It would be wrong to apply to his conduct the standards of detachment which apply to judicial officers or jurors. There is no reason to conclude that the legislature intended to impose such standards upon the Minister, and every reason to conclude otherwise.

…

104    There was a measure of artificiality about categorising the complaint against the Minister as bias. There is an even greater measure of artificiality about treating the rules of natural justice, and the legislation, as requiring the Minister, in exercising his powers under ss 501 and 502, to avoid doing or saying anything that would create an appearance of a kind which, in the case of a judge, could lead to an apprehension the subject of the apprehended bias rule.

105    The Minister was obliged to give genuine consideration to the issues raised by ss 501 and 502, and to bring to bear on those issues a mind that was open to persuasion. He was not additionally required to avoid conducting himself in such a way as would expose a judge to a charge of apprehended bias.

(Emphasis added.) (Footnote omitted.)

32    The other member of the majority, Callinan J, said (at [284]):

284    I would summarise my reasons in this way. Past convictions, especially for very serious crimes, are highly relevant matters of primary importance but not exclusively so, under ss 501 and 502 of the Act. The Full Court erred in holding that the Minister was biased. No case of apprehended bias has been made out. A Minister may, in his or her ministerial capacity speak freely about government policy, the operation of current law, and the government’s desire and policy to change the law, without compromising his or her right and obligation to exercise a power conferred to decide a matter under current law, so long as he or she appreciates the different nature of his or her respective functions and legal obligations in discharging ministerial duties. Any obligations of restraint he or she may owe in speaking and acting are different from, and less onerous than, those owed by courts, judges and tribunals, the last of which may, I express no concluded opinion on it, be different again from the others. Adverse inferences may not be so readily drawn against a Minister in this type of litigation as might be drawn against a party who avoids the witness box in other proceedings.

(Emphasis added.)

33    The significance of the Minister’s special constitutional position is also emphasised by the more recent decision of the High Court in Plaintiff S297/2013 v Minister for Immigration and Border Protection (2015) 89 ALJR 292; 316 ALR 161 where the High Court (at [18]-[20]) referred to the fact that the formulation and application of a policy “does not invoke … notions of prejudgment or bias [or] … of fettering discretion”.

34    It is clear from the Minister’s statement of reasons, that he appreciated the need to direct his attention to the particular circumstances of the appellant and that he did so.

35    Perram J was correct to conclude that he was bound by Jia Legeng. The second ground of appeal fails.

36    The third ground of appeal fails for the same reason.

37    As none of the grounds of appeal succeeds, the appeal should be dismissed with costs.

Associate:

Dated:    2 April 2015