FEDERAL COURT OF AUSTRALIA

Moana v Minister for Immigration and Border Protection [2015] FCAFC 54

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the 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

NORTH J

1    I agree with Rangiah J that the appeal should be dismissed with costs and I also agree with the reasons he gives for those orders.

Associate:

Dated:    22 April 2015

REASONS FOR JUDGMENT

Jessup J

2    I have had the advantage of reading in draft the reasons prepared by Rangiah J in this appeal. I would answer the first question posed at the outset of his Honour’s reasons in the negative. I agree that the appeal should be dismissed.

3    In Tanielu v Minister for Immigration and Border Protection [2014] FCA 673, Mortimer J held (at [88]) that “[t]he risk of harm to the Australian community is a relevant consideration in the exercise of the power pursuant to s 501(2)” of the Migration Act 1958 (Cth) (“the Act”). Her Honour said of the discretion arising under s 501(2) of the Act (at [122]): “[A]lthough the discretion is not fettered by any express limitation, it must nevertheless be exercised by reference to considerations identified from the subject matter, scope and purpose of the statute ….” Her Honour continued (at [123]): “Without assessment of this risk being an integral aspect of the exercise of the power in s 501(2), it is difficult to see how the power would otherwise stay within constitutional limits and advance the purposes and objects of the Migration Act in general, and of the cancellation provisions in particular.”

4    In using the expression “a relevant consideration in the exercise of the power”, Mortimer J invoked what Mason J had said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39:

The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: Sean Investments Pty. Ltd. v MacKellar (1981) 38 A.L.R. 363 at 375; CREEDNZ Inc v Governor-General [1981] 1 N.Z.L.R. 172 at 183, 196–7; Ashby v Minister of Immigration [1981] 1 N.Z.L.R. 222 at 225, 230, 232–3.

(Emphasis in original)

That is to say, unless the consideration perceived to be relevant in this sense is taken into account, then, whatever be the other circumstances of the case at hand, the statutory power cannot be validly exercised.

5    Mortimer J moved from there to the identification of the matters that were required to be taken into account where none were specified in terms in, or in association with, the statutory provision under which the power came to be exercised in a particular case. Here again, the test to be applied is that stated by Mason J in Peko-Wallsend (162 CLR 24 at 39-40):

What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors — and in this context I use this expression to refer to the factors which the decision-maker is bound to consider — are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty. Ltd. (1979) 144 C.L.R. 45 at 49–50, adopting the earlier formulations of Dixon J in Swan Hill Corporation v. Bradbury (1937) 56 C.L.R. 746 at 757–8, and Water Conservation and Irrigation Commission (NSW) v. Browning (1947) 74 C.L.R. 492 at 505. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.

6    The third stage in the proposition accepted by Mortimer J in Tanielu is that the “subject matter, scope and purpose” of s 501(2) of the Act is a protective one, with the result that the power to cancel a visa cannot be exercised without the Minister first having taken into account the risk to the Australian community of the visa holder being permitted to remain a member of that community.

7    In my respectful view, the judgment in Tanielu misstated the law and should not be followed. In Peko-Wallsend, Mason J did not say that, where the discretion to be exercised was unconfined by the terms of the statute, it was in all cases imperative for the decision-maker to identify, from the subject matter, scope and purpose of the relevant provision, the considerations that were, implicitly, to be taken into account. What his Honour said, in the concluding sentence in the passage set out in para 4 above, was that, where the discretion was unconfined in this way, the court would not find that the decision-maker was bound to take a particular matter into account unless an implication to that effect was to be found in the subject matter, scope and purpose of the relevant statute. That is to say, only if it were apparent from the subject matter, scope and purpose of the Act that the power in question ought not to be exercised without taking a particular consideration into account would a court hold that the power could not be so exercised.

8    The effect of the judgment in Tanielu, in my respectful view, was to turn this negative stipulation into a positive requirement, applicable in all cases in which there was no explicit setting out of the considerations which were required to be taken into account as part of the valid exercise of a discretionary power which is, in terms, unconfined. This does not represent the law as articulated by Mason J in Peko-Wallsend.

9    Moreover, it is not as though s 501(2) of the Act is utterly devoid of indications as to the considerations which ought to inform the exercise of the discretion for which it provides, such as, for example, a provision which said no more than that the Minister was empowered to cancel any visa at any time. The subsection is within a category of provisions, regularly found in legislation, which specify preconditions to the taking of an executive step, and thereby provide the context in which the discretion arises. For example, a power given to a local council to remove for disposal an unregistered vehicle left standing by the kerb for more than a month could be exercised on no other ground than that there was such a vehicle by the kerb. Likewise, in my view, the power to cancel a visa under s 501(2) of the Act might validly be exercised upon the Minister taking into account no consideration other than that set out in the subsection, namely, that, in circumstances where the Minister reasonably suspected that the person did not pass the character test, the person did not satisfy the Minister that he or she did pass that test.

10    This is not to hold that, in addition to the visa holder’s failure to satisfy the Minister that he or she did pass the character test, the discretion for which s 501(2) provides is not a real or useful one. There must be a decision made in the particular case. There may always be particular circumstances to which the Minister might validly give attention before exercising the power. But it is to hold that the power may be validly exercised in a situation in which, having turned his or her mind to the facts of the case, the Minister chooses not to take into account any consideration other than the fact that the visa holder does not pass the character test. There is, in my view, nothing in the subsection, or elsewhere in the Act, that has the effect that the power may not be validly exercised unless the Minister takes account of the risk posed to the Australian community of the visa remaining uncancelled.

11    For the above reasons, the appeal should be dismissed.

Associate:

Dated:    22 April 2015

REASONS FOR JUDGMENT

RANGIAH J

12    The appellant, Anthony Mathew Moana, has appealed from the judgment of a single judge of this Court. The primary judge dismissed his application for judicial review of a decision made by the respondent, the Minister for Immigration and Border Protection (“the Minister”). The Minister’s decision was to cancel the appellant’s visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (“the Act”).

13    The sole ground of appeal is that the primary judge erred in failing to quash the decision on the basis that the Minister failed to consider a mandatory relevant consideration, namely whether the continued presence of the visa holder in Australia posed a risk of harm to the Australian community.

14    Section 501(2) gives the Minister a discretion to cancel a visa if certain threshold criteria are met. This appeal is concerned with the way in which the discretion was exercised. The issues which arise are:

(1)    whether the Minister is bound to consider any risk of harm to the Australian community in the exercise of the discretion;

(2)    if so, whether the Minister is bound to evaluate the likelihood of any future harm to the Australian community;

(3)    whether the Minister failed to take into account any risk of harm and to evaluate the likelihood of harm in the present case.

15    For the reasons that follow, I would decide the first issue in favour of the appellant, but not the second and third. Accordingly, the appeal should be dismissed.

the minister’s reasons

16    The appellant is a 53 year old citizen of New Zealand. He has resided in Australia since 1990, except for some short periods when he returned to New Zealand. He held a Class TY Subclass 444 Special Category (Temporary) visa until it was cancelled on 2 July 2014.

17    The Minister chose to exercise his power to cancel the appellant’s visa personally, rather than through a delegate. The Minister provided a written statement of reasons for his decision.

18    The Minister’s reasons commence by considering the threshold issue concerning whether the appellant passed the character test set out in s 501(6). On 15 July 1998, the appellant had been sentenced to imprisonment for two counts of armed robbery, aggravated burglary, three counts of false imprisonment, robbery, blackmail and theft. The sentences were partly concurrent and partly cumulative. The terms of imprisonment ranged from 1 year to 5 years. Then on 25 January 2013 he was sentenced to 20 months’ imprisonment for kidnapping. The Minister concluded that as a result of these sentences of imprisonment, the appellant has a “substantial criminal record” as defined under s 501(7) and, by reason of s 501(6)(a), did not pass the character test. The appellant does not contend that this aspect of the Minister’s decision contains any error.

19    The Minister’s reasons then deal with the exercise of the discretion under s 501(2). The reasons set out the appellant’s criminal record in some detail. Apart from the offences already mentioned, there were numerous more minor offences between 1976 and 2012.

20    The reasons then contain the following under the heading “Mitigating factors and risk of re-offending”:

16.     The court remarked that Mr MOANA had a past history of drug abuse and an acquired brain injury, and that he suffered from bipolar disorder and post traumatic stress disorder. I adopt these observations and consider substance use and his medical conditions contributed to his offending.

17.    I acknowledge the court’s observations in January 2013 that Mr MOANA felt true remorse for his actions and that he had positive prospects for rehabilitation. I give consideration that he committed his most recent offences in December 2011 as a result of a spontaneous response to his former partner’s flight. However, I also give consideration that Mr MOANA was involved in a siege in June 2012 that involved elements of violence, noting that he was subsequently acquitted of all the charges.

18.    Further, Mr MOANA is a repeat offender with a continual criminal history in Australia. He has shown disregard for judicial orders in that he was convicted of multiple counts of breach of intervention order and several counts of breach of suspended sentence. He has continued to re-offend, despite having been formally warned by the department of the consequences in terms of section 501 of doing so.

19.    I have had regard to Mr MOANA’s statements regarding the reasons why he had pleaded guilty to the recent charges, and why he had been unable to undertake the relevant rehabilitation course in prison, and also to his statements that he is deeply sorry for his recent and past offences and that he plans to resume his previous employment and to undertake a Link-Out programme upon release from prison. While he may have made progress towards rehabilitation and intends to address his behaviour on release, I continue to hold concerns regarding the extent of his rehabilitation and conclude that there remains an ongoing risk that he will re-offend in the future, given his criminal history.

(underlining added)

21    The reasons then discuss the appellant’s ties to Australia. These include the fact that he had resided in Australia for 24 years and has five adult children, a three-year-old son and 14 grandchildren, as well as two step-children, in Australia.

22    The reasons acknowledge that it is in the best interests of the appellant’s three-year-old son that the visa not be cancelled. They accept that it is in the best interests of the appellant’s step-son, step-daughter and grandchildren that the visa not be cancelled. The Minister also noted that the appellant has a number of medical conditions.

23    The Minister then sets out his conclusion:

40.    I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act 1958, and (2) all other evidence available to me, including evidence provided by, or on behalf of Mr MOANA.

41.    I considered that Mr MOANA has a long criminal history. In particular, he committed a number of violent offences in Australia. I consider such offending is very serious. I gave consideration to his general criminal history and find his offending is frequent, in addition to lack of respect and disregard he has to Australian laws.

42.    I also considered the countervailing considerations in Mr MOANA’s case including his employment and familial ties to Australia, as well as the best interests of his son, of his two stepchildren and of his 14 grandchildren. Further, I considered his personal circumstances including his period of residence and his health concerns. In making my decision, I have taken the view that despite his absence, his return to New Zealand would not cause him undue hardship given the support and availability of health and other services in that country.

43.    I accept Mr MOANA is remorseful and has made progress towards rehabilitation. In the light of his criminal history I have reservations about the extent of his rehabilitation.

44.    In reaching my decision I concluded that Mr MOANA’s history of offending with repeated violent conduct, his disregard of judicial orders and of the department’s previous warning, he represents an unacceptable risk of harm to the Australian community. I also concluded the protection of the Australian community outweighed any countervailing considerations in Mr MOANA’s case.

45.    Having given full consideration to all of these matters, I decided to exercise my discretion to cancel Mr MOANA’s Class TY, Subclass 444 Special Category (Temporary) visa under subsection 501(2).

(underlining added)

the legislation

24    At the time of the Minister’s decision, s 501 of the Act provided relevantly:

Decision of Minister or delegate—natural justice applies

(1)    The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note:    Character test is defined by subsection (6).

(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.

…

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)); or

(aa)    the person has been convicted of an offence that was committed:

(i)    while the person was in immigration detention; or

(ii)    during an escape by the person from immigration detention; or

(iii)    after the person escaped from immigration detention but before the person was taken into immigration detention again; or

(ab)    the person has been convicted of an offence against section 197A; or

(b)    the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

(c)    having regard to either or both of the following:

(i)    the person’s past and present criminal conduct;

(ii)    the person’s past and present general conduct;

the person is not of good character; or

(d)    in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:

(i)    engage in criminal conduct in Australia; or

(ii)    harass, molest, intimidate or stalk another person in Australia; or

(iii)    vilify a segment of the Australian community; or

(iv)    incite discord in the Australian community or in a segment of that community; or

(v)    represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

Otherwise, the person passes the character test.

Substantial criminal record

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

(a)    the person has been sentenced to death; or

(b)    the person has been sentenced to imprisonment for life; or

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

(d)    the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or

(e)    the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.

25    The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) (“the Amendment Act”) amended s 501 and related provisions of the Act with effect from 11 December 2014.

26    The Amendment Act added a subsection (3A) to s 501:

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

27    The Amendment Act amended paragraph (b) of s 501(6) and added paragraphs (ba) and (e)-(h):

(b)    the Minister reasonably suspects:

(i)    that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and

(ii)    that the group, organisation or person has been or is involved in criminal conduct; or

(ba)    the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:

(i)    an offence under one or more of sections 233A to 234A (people smuggling);

(ii)    an offence of trafficking in persons;

(iii)    the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;

whether or not the person, or another person, has been convicted of an offence constituted by the conduct; or

…

(e)    a court in Australia or a foreign country has:

(i)    convicted the person of one or more sexually based offences involving a child; or

(ii)    found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or

(f)    the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following:

(i)    the crime of genocide;

(ii)    a crime against humanity;

(iii)    a war crime;

(iv)    a crime involving torture or slavery;

(v)    a crime that is otherwise of serious international concern; or

(g)    the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or

(h)    an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.

28    The provisions amended or added by the Amendment Act do not affect this appeal, but are set out for completeness. The appeal must be decided according to the form that s 501 took when the Minister made his decision on 2 July 2014.

The submissions

29    The appellant submits that in exercising the discretion under s 501(2) of the Act, the Minister is bound to consider whether there is a risk of harm posed to the Australian community by the continued presence of the visa holder in Australia. The appellant argues that such a requirement is to be implied from the subject matter, scope and purpose of s 501(2). The appellant’s arguments rely heavily upon the reasoning of Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673.

30    The appellant argues that each of the bases of the character test in s 501(6) involves protection of the Australian community as a whole or to a section of it. He contends that the power to exclude a person from the Australian community can only have two possible purposes, namely punishment of the person or protection of the Australian community. He argues that it would be beyond the constitutional limits of the Minister’s power to punish, so that the only permissible purpose of the power can be protection. That protection must be protection from the risk of harm. The appellant submits that it follows that the Minister must be bound to take into account the risk of harm to the Australian community. The appellant also submits that the Minister cannot exercise his power under s 501(2) where there is no risk of harm to the Australian community.

31    The appellant’s argument goes further. He submits that consideration of the risk of harm to the Australian community requires consideration of the seriousness and likelihood of harm. He submits, relying on Tanielu, that consideration of the likelihood of harm requires the Minister to conduct an evaluation of the “static and dynamic factors” relevant to the risk of harm. These factors might include the availability of family support and the person’s alcohol and drug abuse patterns, employment prospects and any likely future exposure to the catalysts of prior offending.

32    The appellant submits that the Minister fell into jurisdictional error by failing to consider whether there is risk of harm to the Australian community and by failing to undertake an evaluation of the likelihood of such harm.

33    The Minister submits that the discretion conferred by s 501(2) is not conditioned on any requirement that the Minister take into account the risk of harm to the Australian community, much less that the Minister is required to conduct an evaluation of the static and dynamic factors relevant to the likelihood of any future harm occurring. The Minister contends that while it is permissible to treat the protection of the Australian community as relevant to the exercise of the discretion, that does not mean that the Minister is bound to take the risk of harm into account in every case. The Minister submits that the discretion can be lawfully exercised for purposes other than the protection of the community, so that risk of harm to the community is not always relevant. He submits that this shows both that the purpose of the power is not confined to protection of the community and that such risk cannot be taken to be a mandatory relevant consideration in every case.

34    The Minister submits squarely that Tanielu was wrongly decided. The Minister relies upon a passage from the judgment of Kiefel and Bennett JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at [74] to the effect that it does not seem possible to imply some obligation on the Minister’s part to consider specific factors personal to the visa holder.

35    The Minister also submits that, in any event, his reasons demonstrate that he did take into account the risk of harm to the Australian community posed by the appellant and did evaluate the likelihood of such harm.

THE JUDGMENT OF THE PRIMARY JUDGE

36    The submissions made in the appeal were also made to the primary judge. Her Honour concluded that it was unnecessary to reach a view as to whether the risk of harm that the visa holder poses to the Australian community is a mandatory relevant consideration because that risk had been considered by the Minister in the present case.

37    The primary judge decided that it was also unnecessary to reach a conclusion as to whether the decision of Tanielu is authority for the proposition that the assessment of risk requires an evaluation of the risk of any future harm which might be caused and the likelihood of that harm occurring. That was because the Minister had formed a view about those matters in making his decision.

38    Accordingly, her Honour held that no jurisdictional error had been demonstrated and that the application for judicial review should be dismissed.

Consideration

Whether risk to the community is a mandatory relevant consideration

39    The first issue in the appeal is whether the Minister is bound to consider any risk of harm to the Australian community posed by the continued presence of the visa holder in Australia when exercising the discretion under s 501(2) of the Act.

40    It is apparent that s 501(2) confers a broad discretion on the Minister to cancel a visa. The discretion is enlivened if the Minister reasonably suspects a visa holder does not pass the character test and the visa holder fails to satisfy the Minister that he or she passes the character test. The circumstances in which a person does not pass the character test are set out in s 501(6).

41    Section 501(2) does not expressly state any factors which must be taken into account in the exercise of the discretion. The question of what, if any, factors the decision-maker is bound to take into account is a question of construction of the statute. A court will not find that a decision-maker is bound to take a particular matter into account unless an implication that the decision-maker is bound to do so is found in the subject-matter, scope and purpose of the Act: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J, Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 per Deane J, Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 per Mason J.

42    As the appellant’s submission that the Minister is bound to consider risk of harm to the Australian community focuses heavily upon the reasons for judgment in Tanielu, it is convenient to begin by considering those reasons.

43    In Tanielu, Mortimer J concluded that risk of harm to the Australian community must be taken into account by the Minister in exercise of the discretion under s 501(2). Her Honour also concluded that consideration of the risk of harm can only be undertaken by evaluating the seriousness of any future harm which might be caused and the likelihood of that harm occurring. Her Honour held that as the Minister had failed to conduct such an evaluation in that case, his decision to cancel the applicant’s visa was affected by jurisdictional error.

44    Mortimer J considered that the content of the character test gives the best contextual indication of the considerations which the statute makes relevant to the exercise of the power. Her Honour’s view was that each of the criteria set out in s 501(6) which may cause a person to fail the character test involves protection of the Australian community; using “protection” in a broad sense of some kind of harm, disadvantage or unacceptable or undesirable consequence. Her Honour thought that without assessment of risk to the Australian community being an integral aspect of the exercise of the power in s 501(2), it is difficult to see how the power would otherwise stay within constitutional limits and advance the purposes and objects of the Act in general and the cancellation provisions in particular.

45    Mortimer J derived some limited assistance from the second reading speech for the Migration (Offences and Undesirable Persons) Amendment Bill 1992 (Cth) which introduced s 180A, the predecessor of s 501, into the Act. The Minister had said “[t]his sort of legislation is designed to protect the nation.”

46    Mortimer J considered the Minister’s submission that, irrespective of whether a risk is posed by a person, the Minister could decide that it is not in the national interest for a person to remain in Australia. Her Honour said that the national interest may well be a permissible consideration in the exercise of the discretion under s 501(2), but there will be a point when reliance on the national interest, devoid from any considerations of protection, might be seen as exercising the discretion in a punitive fashion. Her Honour noted that in Djalic v Minster for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 at [73] Tamberlin, Sackville and Stone JJ said that the purpose of protection of the community is what distinguishes the exercise of power from one that may be invalid by reason of Chapter III of the Constitution. Her Honour also noted that in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, Allsop CJ and Katzmann J at [30] cast doubt on the proposition that if deterrence is a sole or substantial purpose of the exercise of the s 501(2) discretion, it would be valid. Her Honour considered the Minister’s submission that the s 501(2) discretion is so unconfined that there could be relevant matters under the rubric of “national interest” which are divorced from any relationship to protection of the Australian community to be flawed. In her Honour’s opinion, if that were the case, it is likely that the line between punishment and protection could be crossed and constitutional difficulties could arise. Her Honour considered, however, that no conclusive determination of these matters need be given in that case, it being sufficient to reject the Minister’s submission that reliance upon national interest divorced from any notions of protection of the Australian community could provide an example of necessarily lawful exercise of the discretion.

47    Mortimer J concluded that the risk of harm to the Australian community is a matter that a decision-maker, including the Minister personally, is bound to take into account in exercising the discretion under s 501(2). That is because an assessment of such a risk is a necessary part of exercising the power for the purpose for which it has been conferred, namely, protection of the Australian community.

48    I agree with the view of Mortimer J that risk to the Australian community posed by the continued presence of the visa holder in Australia is a consideration that the Minister is bound to take into account in the exercise of the discretion to cancel the visa under s 501(2). However, I reach that conclusion for reasons that are, in some respects, different from those of Mortimer J.

49    The Minister engages in only one exercise of power under s 501(2). That exercise of power involves two stages: firstly, considering the threshold question of whether the Minister reasonably suspects that the person does not pass the character test and whether the person has satisfied the Minister that he or she passes the test; and secondly, considering the exercise of the discretion. The Minister submits that in the absence of the specification of any considerations relevant to the exercise of the discretion, it is for the Minister to determine the matters which he or she regards as relevant. That argument assumes that the threshold question is entirely divorced from the exercise of the discretion. However, my opinion is that the Minister’s consideration of the character test necessarily informs his consideration of the discretion. It is the relationship between the threshold question and the discretion in the exercise of a single power that leads me to conclude that risk to the Australian community is a mandatory relevant consideration.

50    As Mortimer J noted in Tanielu, each of the criteria set out in s 501(6) which may cause a person to fail the character test involves protection of the Australian community, in the sense of protection against some kind of harm, disadvantage or unacceptable or undesirable consequence arising from allowing a person to enter or remain in Australia.

51    Under paragraph (a) of s 501(6), a person with a substantial criminal record, as defined under s 501(7), does not pass the character test. It is implicit that the presence in Australia of a person with a substantial criminal record poses or may pose some risk of harm to the Australian community or a segment of it. The risk is that such a person may engage in criminal conduct in the future.

52    Under paragraph (aa) of s 501(6), a person convicted of an offence committed in immigration detention, or during, or following an escape from immigration detention, does not pass the character test. Paragraph (aa) seems to be aimed principally at deterrence of criminal conduct in the circumstances referred to in those paragraphs, but deterrence of criminal conduct is a matter concerned with protection of the Australian community: Djalic at [75], NBMZ at [29] per Allsop CJ and Katzmann J. The same may be said of paragraph (ab), which deals with the offence against s 197A of a detainee escaping from immigration detention. The circumstances described in paragraphs (a) and the conduct described in paragraphs (aa) and (ab) are treated as sufficiently serious that the relevant person is taken to fail the character test without any further assessment being required on the part of the Minister.

53    Paragraph (b) of s 501(6) applies to a person with an association with a person, group or organisation whom the Minister reasonably suspects has been or is involved in criminal conduct. The association must involve some sympathy with, or support for, or involvement in, the criminal conduct of the person, group or organisation, such as to have some bearing on the person’s character: Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414 at [131]-[132] per Black CJ, French and Weinberg JJ. It is implicit in paragraph (b) that such a person may pose a risk of harm to the Australian community.

54    Paragraph (c) of s 501(6) requires an assessment to be made of a person’s past and present criminal conduct, or general conduct, or both, to determine whether that conduct shows a lack of enduring moral quality: Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411 at [56] per Lee J, approved on appeal at (2015) 141 FCR 552 at [34]. I agree with Mortimer J’s analysis of paragraph (c) in Tanielu and her Honour’s conclusion that the assessment and determination required under that paragraph is to be undertaken with a view to protection of the Australian community.

55    Paragraph (d) of s 501(6) requires the Minister to evaluate whether there is a significant risk that the person would engage in certain harmful conduct towards a person in Australia or a segment of the Australian community or the Australian community as a whole. The conduct described in paragraph (d) is: engaging in criminal conduct; harassing, molesting, intimidating or stalking a person; vilifying a segment of the Australian community; inciting discord; or representing a danger to the Australian community.

56    It may be seen that each of the criteria in s 501(6) involves a risk of harm of some kind to the Australian community posed by a person entering or remaining in Australia.

57    The discretion under s 501(2) is not enlivened unless the threshold test is met. In some cases, the Minister will be required to consider whether there is a significant risk that the person would represent a danger to the Australian community of a type specified in paragraph (d) of s 501(6). If the discretion is then to be enlivened, the Minister must form a reasonable suspicion that there is a significant risk that person represents such a danger and must fail to be satisfied by the person that he or she does not. As Parliament required the Minister to evaluate the danger, or risk, to the Australian community at the threshold stage it seems unlikely that Parliament intended that the Minister should then be at liberty to ignore that risk when exercising the discretion. What seems more likely is that Parliament intended that, having taken that risk into consideration at the threshold stage, the Minister must also consider it in exercising the discretion. Similarly, it is unlikely that Parliament intended that the Minister must consider under paragraph (a) of s 501(6) whether the person has a substantial criminal record, but be free to choose whether to take into account that criminal record when exercising the discretion. It is unlikely that Parliament intended to require that the Minister must, for the purposes of paragraph (c), consider whether the person is not of good character having regard to the person’s past and present criminal conduct or general conduct or both, but not also require the Minister to have regard to that conduct when exercising the discretion. A similar conclusion may be reached concerning each of the other paragraphs of s 501(6) (including paragraphs (e), (f), (g) and (h) which were added by the Amendment Act).

58    The common thread that underlies each of the criteria in s 501(6) is the risk of harm posed by a person coming into or remaining in the Australian community. In every case, the Minister’s consideration of the character test necessarily involves consideration of the risk of harm, whether that consideration is undertaken by actively assessing the risk under paragraphs (b), (c) and (d) or is implicit in the making of a finding that paragraph (a) or (aa) or (ab) is satisfied. The discretion to cancel a person’s visa is enlivened because the person will or may place the Australian community at risk of harm. I do not think that s 501(2) can be interpreted as requiring the Minister to consider the risk of harm at the threshold stage, but leaving it to the Minister to decide whether to take that same risk of harm into account when exercising the discretion.

59    If it were otherwise, in a case where the Minister concludes at the threshold stage that there is a high risk to the Australian community, it would be open to the Minister to refuse to cancel a visa without any consideration of that risk at the discretionary stage. I do not think that the legislature could have intended that the discretion be so open ended and so devoid of structure as to allow the Minister to ignore a matter that it has required the Minister to consider at an earlier stage of the decision-making process.

60    My conclusion does not involve conflation of the threshold question and the exercise of the discretion. They are separate questions, but they are linked by the fact that they are stages in the exercise of a single power. It is not as if the risk of harm loses its relevance in between the first and second stages. There would be inconsistency if, in the exercise of that single power, the Minister is required to consider risk to the Australian community at the first stage but is free to choose whether or not to consider the same matter at the final stage.

61    In Gbojueh v Minister for Immigration and Citizenship (2012) 202 FCR 417 at [45], Bromberg J concluded that the Minister is bound to consider the potential for harm to the Australian community in the exercise of the discretion under s 501A(2), which deals with cancellation or refusal of a visa on national interest grounds. His Honour thought it unlikely that the potential for the Australian community to be harmed by the continued presence of the non-citizen in Australia was intended as an optional consideration at the Minister’s election. Section 501(2) and s 501A(2) have in common a threshold issue concerning the character test and then the exercise of a discretion, which allows me to draw support for my conclusion from his Honour’s reasoning.

62    The Minister submits that there are circumstances in which the discretion may be exercised for reasons other than protection of the Australian community. The purpose of the submission is two-fold. Firstly, the submission seeks to refute the appellant’s submission that the only legitimate purpose of s 501(2) is the protection of the Australian community. Secondly, the Minister argues that if the risk of harm is not relevant to every exercise of the discretion, risk of harm cannot be taken to be a mandatory consideration in every case.

63    In support of the premise of his argument the Minister referred to cases concerning ss 501(3) and 501A in which it has been said that a person may commit a crime of such a serious nature as to found a satisfaction that it is in the national interest to cancel his or her visa: Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [79] per Gaudron J; Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 409 per Heerey, Lindgren and Emmett JJ; Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 at [86] per French, O’Loughlin and Whitlam JJ. The Minister argues that the effect of these cases is to demonstrate that the discretion under s 501(2) may properly be exercised by reference to the expectations of the Australian community, rather than protection of the Australian community: cf Djalic at [72], [74]. This argument assumes that there is a neat distinction between the expectations of the Australian community and its protection. I doubt that there is a clear distinction. If a crime is considered to be of such a nature that the expectation of the Australian community is that the person who has committed it should not remain in Australia, it is likely that at least part of the underlying rationale is the need to protect the community from a person who could commit such a crime and to deter others from committing such a crime.

64    I will assume that there are circumstances in which the Minister may cancel the visa for reasons other than protection of the community without infringing constitutional limitations upon the imposition of punishment, perhaps under the rubric of expectations of the Australian community. It is enough to assume that matter in the Minister’s favour, without deciding it. The Minister argues that in such cases the question of whether there is risk of harm to the Australian community will be irrelevant to the exercise of the discretion; so that such risk cannot be a mandatory relevant consideration applicable to every case. However, I find it difficult to imagine a case where the risk of harm could be irrelevant. Even if the Minister considered that a factor unconnected with protection of the Australian community should prevail, the question of risk, or absence of risk, would not be irrelevant to the exercise of the discretion.

65    The Minister referred to Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at [128] where Heydon and Crennan JJ (with whom Gleeson CJ agreed) stated that Parliament has left it to the Minister to decide the matters which are relevant to whether a person who fails the character test should be permitted to remain in Australia. The Minister submitted that the application of that passage means that the Court must conclude that the the risk of harm to the Australian community is not a mandatory relevant consideration. However, the passage from Nystrom must be understood in the context of the issue being considered there. The issue was whether, when deciding to cancel a visa, the Minister was bound to take into account the nature of another substantive visa that would be cancelled as a statutory consequence of that decision. Nothing like the present question arose in that case. I do not think that the observations in Nystrom can be taken as intended to foreclose acceptance of all possible arguments that there is a particular consideration that the Minister is bound to take into account.

66    I consider that in the exercise of the discretion under s 501(2), the Minister is required to consider whether there is a risk of harm to the Australian community posed by the continued presence of the visa holder in Australia and to take into account any such risk.

Whether the Minister is bound to evaluate the likelihood of any future harm to the Australian community

67    The appellant argues that the concept of risk of harm comprises of two integers: the seriousness of any harm that might be caused; and the likelihood of that harm occurring. The appellant submits that the Minister must make findings as to each of these integers when exercising the discretion. The appellant argues that an assessment of the likelihood of harm occurring requires an evaluation of the static and dynamic factors relevant to such risk, and that the Minister committed jurisdictional error by failing to conduct such an evaluation in this case.

68    In Tanielu, Mortimer J referred to a number of authorities concerning what her Honour described as “decision-making which has a clear protective purpose”, such as under preventative detention regimes. Such decision-making involves assessment of how a person will behave in the future and whether that behaviour involves a risk of harm or a risk of repetition of prior conduct. Her Honour noted that it is an inherent and indispensable part of any such assessment that the likelihood of a person engaging in such conduct in the future is considered. Her Honour said that there was no reason to suppose any qualitatively different approach is to be taken in administrative decision making where the exercise of a power is intended by Parliament to be protective of the safety and welfare of others.

69    Mortimer J noted that it is well established that the likelihood of a person engaging in conduct in the future is affected by both static and dynamic factors: that is, factors which can be assessed objectively against statistical models to predict the risk category a person falls into, and dynamic factors personal to an individual which may moderate or exacerbate the risk the person otherwise could be said to pose. Those factors might include family support, alcohol and drug abuse patterns, employment and the like. It is not entirely clear whether her Honour was suggesting that these static and dynamic factors must be taken into account in every case in the exercise of the discretion under s 501(2).

70    Mortimer J decided that the exercise of the discretion under s 501(2) requires the risk of harm to be considered and that an examination of the likelihood of a person engaging in future conduct which may cause harm is an essential part of any assessment of the risk that the person poses to the Australian community.

71    If the Minister is to be held to be bound to examine the likelihood of a person engaging in future conduct which may cause harm in every exercise of the discretion under s 501(2), then an implication to that effect must appear from the subject matter, scope and purpose of the Act. It is not enough to argue that principles concerning other statutory provisions with a protective purpose must apply analogously to s 501(2). It is one thing to conclude, as I have, that the Minister must consider the risk of harm, but it is a step removed to decide that the statute contains an implication that the Minister must evaluate the risk of harm in a particular way.

72    The cases concerning s 501A relied on by the Minister (see para [63]) establish that the seriousness of an offence may, of itself, lead the Minister to conclude that a visa should be cancelled in the national interest. I consider that the seriousness of an offence or other relevant past conduct may also lead the Minister to conclude that a visa should be cancelled in the discretion under s 501(2) without evaluating the likelihood that the visa holder will reoffend or engage in harmful conduct. It is implicit in s 501 that Parliament considers that a person who does not pass the character test poses a risk of harm of some kind, although that does not lead to a presumption that the discretion should be exercised in a particular way. In a particular case, however, the Minister may take the view the seriousness of the offence or conduct means that any risk is intolerable. It follows that in exercising the discretion in s 501(2), the Minister is not bound to engage in an evaluation of the likelihood of a person engaging in future conduct which may cause harm.

73    Contrary to the appellant’s submission, I doubt whether Mortimer J held that the Minister must evaluate the static and dynamic factors personal to an individual that may affect the risk that the person may pose when exercising the discretion. I think that her Honour was merely illustrating the factors of the type that might influence the likelihood of a person engaging in future conduct which may cause harm. In any event, there is direct authority against the proposition that the Minister is bound to consider factors personal to the visa holder: Huynh at [74] per Kiefel and Bennett JJ. I am unable to see how s 501(2) can be construed to require the Minister to take into account such personal factors when considering the risk of harm.

74    I consider that the Minister is not bound to conduct an evaluation of the likelihood of the visa holder engaging in future conduct that may cause harm when exercising the discretion under s 501(2). That is not to say that evaluation of such likelihood will not be centrally relevant to the exercise of the Minister’s discretion in most cases. The exercise of the discretion to cancel a visa without examining the likelihood of future harm may in some circumstances be unreasonable, in the sense of lacking an evident and intelligible justification: cf Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ. However, s 501(2) cannot be construed to require the Minister to take into account that likelihood in all cases.

Whether the Minister considered the risk of harm to the Australian community

75    It is apparent from the Minister’s reasons that he did take into account the risk to the Australian community that would be posed by the appellant’s continued presence in Australia.

76    The Minister referred to factors that suggested that the appellant might not reoffend, namely his remorse and his positive prospects for rehabilitation. The Minister also considered factors that demonstrated that the appellant posed a risk to the Australian community, including his lengthy criminal history, the violent nature of some of his offences, his disregard of judicial orders and his reoffending despite being given a warning that his visa may be cancelled.

77    The Minister expressly concluded that the appellant’s history of offending with repeated violent conduct, his disregard of judicial orders and of the Department’s previous warning meant that he represents an unacceptable risk of harm to the Australian community. The Minister also concluded that the protection of the Australian community outweighed any countervailing considerations.

78    The Minister did take into account the risk of harm to the Australian community. He was not bound to engage in an evaluation of the likelihood that the appellant would engage in future harmful conduct if he were to remain in Australia.

79    The appellant has not demonstrated any error in the judgment of the primary Judge. Therefore, the appeal should be dismissed with costs.

Associate:

Dated:        22 April 2015