FEDERAL COURT OF AUSTRALIA

Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83

THE COURT ORDERS THAT:

1.    Leave is granted to amend the Notice of Appeal in the form of the Further Amended Notice of Appeal filed on 28 May 2015.

2.    The appeal is dismissed.

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

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

REASONS FOR JUDGMENT

THE COURT

1    The Appellant, Mr Omran Ayoub, is a citizen of Lebanon.

2    He first entered Australia in April 2001. In September 2003 he was granted a visa which enabled him to remain in Australia indefinitely. Since then he has come and gone on a number of occasions.

3    Relevantly for present purposes is the fact that in June 2009 Mr Ayoub was convicted in the New South Wales District Court of a criminal offence and sentenced to seven years’ imprisonment. He appealed against the sentence imposed but that appeal was dismissed. He was released from prison on 14 May 2014.

4    In advance of his release, a Departmental Submission was sent to the Minister canvassing whether Mr Ayoub’s visa should be cancelled pursuant to s 501 of the Migration Act 1958 (Cth) (the “Migration Act”) and whether the Minister wished to make the decision personally or whether any decision should be made by a delegate. On 16 May 2014 the Minister made a decision to cancel Mr Ayoub’s visa. The Minister provided a Statement of Reasons for his decision. Those reasons canvassed the circumstances surrounding the criminal offence, Mr Ayoub’s risk of re-offending, his ties to Australia, the best interests of his minor children and “other considerations”.

5    Judicial review of the Minister’s decision was sought. For the purposes of undertaking that review, attention was focussed upon that part of the Minister’s reasons which stated:

Non-refoulement Obligations

33.    As Mr AYOUB is a Lebanese citizen, he would be returned to Lebanon. Mr AYOUB states that he fears return to Lebanon as the situation there is very dangerous and the country is on the brink of civil war.

34.    While I note Mr AYOUB’s claim to fear return to Lebanon, I also consider that the existence of a non-refoulement obligation does not preclude the cancellation of a person’s visa. This is because Australia will not necessarily remove a person, as a consequence of cancelling their visa, to a country in respect of which a non-refoulement obligation exists.

The Statement of Reasons separately stated the Minister’s conclusion as to the nature of the criminal offence and “the principle that a non-citizen who commits a serious crime should forfeit the privilege of staying in Australia…”. The argument before the primary Judge also specifically focussed attention upon the following statement of the Minister:

CONCLUSION

…

48.    I acknowledge Mr AYOUB’s claim to fear return to Lebanon. However, I note that cancellation of Mr AYOUB’s visa is not inconsistent with Australia’s international obligations, as Australia will not necessarily remove Mr AYOUB to a country in respect of which a non-refoulement obligation exists.

It was contended that the Minister’s decision was vitiated by reason of a failure “to give proper, realistic and genuine consideration to the applicant’s claim that he would be in danger were he to be returned to Lebanon…”. The Minister, it was contended on behalf of Mr Ayoub, was required to decide (inter alia) whether “Australia has non-refoulement obligations to the applicant…”.

6    On 30 January 2015 a Judge of this Court dismissed that application for review: Ayoub v Minister for Immigration and Border Protection [2015] FCA 24, (2015) 144 ALD 342. The primary Judge found “slightly perplexing” the Minister’s “consideration of non-refoulement in circumstances where it does not appear to me that Mr Ayoub was claiming to be someone to whom Australia owed protection obligations…”: [2015] FCA 24 at [23], (2015) 114 ALD at 347. His Honour concluded that the Minister did not commit “any legal (much less jurisdictional) error as a result of having considered a matter that he was not bound to consider”: [2015] FCA 24 at [24] , (2015) 114 ALD at 347.

7    A Notice of Appeal was filed on 19 February 2015. An Amended Notice of Appeal was filed on 25 March 2015. Leave was sought at the outset of the hearing of the appeal to file a Further Amended Notice of Appeal. The proposed amendments recast the existing Ground 1 and seek to add Grounds 2 and 3 being new arguments which were not agitated before the primary Judge. The principles to be applied, when considering whether to permit new grounds to be raised on appeal, are well-recognised: e.g., NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 at [163] to [166], (2005) 147 FCR 51 at 84 to 85 per Madgwick J (Hill J agreeing). In the present proceeding, the proposed new Grounds raised discrete questions of law and the Minister consented to leave being granted. Leave was, accordingly, granted.

8    The first Ground of Appeal as amended (in summary form) contends that:

    the primary Judge erred in finding that the Minister was not obliged to give the issue of non-refoulement any consideration and in finding that the prospect of indefinite detention need not be considered.

The new Grounds 2 and 3 respectively contend (again in very summary form) that:

    the Minister failed properly to take into account a “mandatory relevant consideration, being the risk of future harm to the Australian community if the appellant were to remain in Australia”;

and, in the alternative:

    the Minister’s consideration of the risk of future harm to the Australian community was affected by irrationality and/or unreasonableness.

It is concluded that each of these Grounds should be rejected.

9    The appeal is to be dismissed with costs.

Section 501 and the relevance of non-refoulement

10    The first Ground of Appeal is variously expressed.

11    In substance it claims that when exercising the discretion conferred by s 501 of the Migration Act the Minister must give consideration to:

    “…the issue of non-refoulement”; and

    “…the prospect of indefinite detention…”.

The written submissions filed on behalf of the Appellant claim these considerations to be “mandatory considerations”. Differently expressed, those submissions further claimed that the Minister “must take into account the legal operation and effect of the cancellation decision…”.

12    However this Ground of Appeal may be expressed, it is rejected.

13    The cancellation decision was taken pursuant to s 501(2), (6)(a) and (7)(c). Those sub-sections provided at the time the decision was made as follows:

Decision of Minister or delegate–natural justice applies

…

(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

…

(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; or

…

Although of no immediate relevance to the basis upon which it has been concluded that the appeal should be dismissed, two further provisions to which reference was made during submissions should be noted. First, s 501(6)(d) provided at the time the decision was made in part as follows:

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

…

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

…

(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.

…

And, second, s 501E then provided as follows:

Refusal or cancellation of visa–prohibition on applying for other visas

(1)    A person is not allowed to make an application for a visa at a particular time (the application time) that occurs during a period throughout which the person is in the migration zone if:

(a)    at an earlier time during that period, the Minister made a decision under section 501, 501A or 501B to refuse to grant a visa to the person or to cancel a visa that has been granted to the person; and

(b)    the decision was neither set aside nor revoked before the application time.

(2)    Subsection (1) does not prevent a person, at the application time, from making an application for:

(a)    a protection visa; or

(b)    a visa specified in the regulations for the purposes of this subsection.

14    For the purposes of resolving the first Ground of Appeal it is unnecessary to express any concluded view as to whether the exercise of the discretionary power conferred by s 501 is necessarily constrained by a requirement to consider Australia’s “non-refoulement obligations”.

15    It may nevertheless be noted that the concept of non-refoulement has its origins, not in s 501 of the Migration Act, but in Article 33 of the 1951 Convention Relating to the Status of Refugees (the “Refugees Convention”) as amended in 1967. That Article provides as follows:

Article 33

PROHIBITION OF EXPULSION OR RETURN (“REFOULEMENT”)

1.    No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2.    The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

As the terms of Article 33 make clear, it is an international constraint upon the return of refugees to a place where the claimant will face a threat of the kind there described. But, as recent amendments to s 5 of the Migration Act make evident, “non-refoulement obligations” are not confined to the obligations assumed by Article 33 of the Refugees Convention: Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), Sch 5 cl 1.

16    Mr Ayoub, it may further be noted, had not claimed to be a refugee and had not applied for a protection visa. He was not claiming to be a person whose “life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. He did, however, claim that there “is constant war in Lebanon” and that he did “fear for the safety of my wife and kids…”.

17    It is unnecessary to express any concluded view as to whether the exercise of the discretion to cancel a visa pursuant to s 501 is necessarily constrained by either:

    the obligations imposed by Article 33 (or any analogous provision); and/or

    the need to consider the “consequence” of cancelling the visa, being “the prospect of indefinite detention”,

for the simple reason that:

    the Minister had in fact considered such matters at paragraphs [33] and [34] of his Statement of Reasons. He again reverted to a consideration of such matters in his conclusions at paragraph [48] of those reasons.

18    In this context, it may be accepted that the Minister is obliged when considering the plight of a refugee in immigration detention to take into account the “consequences” of his decision: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38 at [17], (2014) 220 FCR 1 at 6 per Allsop CJ and Katzmann J. In reaching the same conclusion, Buchanan J there said:

[177]    … it is sufficiently apparent, in my view, that the Minister gave no thought to, or alternatively regarded as irrelevant or not significant, that the applicant would, as both a legal and practical consequence of the decision, face the prospect of indefinite detention if a visa was refused.

See also his Honour’s comments at [164] to [166].

19    NBMZ, however, is no authority for the more generally-expressed proposition that the Minister must take into account when exercising the discretion conferred by s 501 the prospect that a claimant may be exposed to “indefinite detention” at some future point of time dependent both upon possible future applications that may or may not be made and upon future, potentially adverse, exercises of the discretion. The task of the Minister in the present proceeding was to resolve the more confined question of the manner in which the discretion conferred by s 501 should have been exercised. Future exercises of discretion and statutory power are to be resolved when they arise. The fact that the prospect remains open to Mr Ayoub by reason of s 501E to make a future application for a protection visa perhaps provides some support for a conclusion that it is at that future point of time that the prospect of “indefinite detention” may have to be confronted.

20    On no view of the facts of the present case could it be said that the “consequence” of the cancellation of Mr Ayoub’s visa pursuant to s 501 was “indefinite detention”. The “consequence” of the cancellation decision may well be his detention pursuant to s 189 of the Migration Act – but that “consequence” falls well short of “indefinite detention”. A comparable conclusion was reached by White J in Jaffarie v Director-General of Security [2014] FCAFC 102 at [126] to [133], (2014) 226 FCR 505 at 538 to 539.

21    As a fall-back position, Counsel for the Appellant re-grouped and seized upon the very fact that the Minister had addressed such considerations in his Statement of Reasons. Having embarked upon a consideration of “non-refoulement obligations”, it was then submitted that the Minister was “…obliged to carry that analysis through to completion, applying correct legal principle”.

22    There are at least two difficulties with this submission, namely:

    the source of any such obligation to “complete” a consideration of the matters referred to in the Statement of Reasons remained uncertain; and

    that which was required to “complete” the “analysis” or the tasks which remained to be performed to “complete” the “analysis” equally remained uncertain.

23    As to the former of these difficulties, it may be accepted as a general proposition that there must be a “proper, genuine and realistic consideration” of those matters that must be taken into account for an exercise of statutory power to be lawful such as the requirement to “give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy”: Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J.

24    It may also be accepted that the formula of a “proper, genuine and realistic consideration” has the very real danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any Tribunal decision can be scrutinised”: Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 at [65], 106 FCR 426 at 442 per Heerey, Goldberg and Weinberg JJ. There is also the prospect that in limited circumstances there may be a requirement to make further inquiries before an administrative decision-making process may be “completed” and before a decision may lawfully be made: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, (2009) 111 ALD 15.

25    In the present proceeding, the source of the obligation to “complete” a consideration of the “non-refoulement obligations” referred to in the Minister’s Statement of Reasons was said to be found in Plaintiff M61/2010E v The Commonwealth of Australia [2010] HCA 41, (2010) 243 CLR 319. In that case two citizens of Sri Lanka had entered Australia and claimed to be refugees. Section 46A of the Migration Act provided that an application for a visa was not a valid application if it was made by an “offshore entry person”. Section 46A(2) conferred upon the Minister a power to determine that the provision did not apply. One issue to be resolved in that case was the Constitutional validity of that provision. That issue was resolved in favour of validity. A further argument to be resolved was whether the Minister when making a decision could properly claim that his decision-making function was “undertaken pursuant to the non-statutory executive power under s 61 of the Constitution” and that “there is no underlying right or obligation or constraint on power that is enforceable in the exercise of the judicial power under s 75(iii) or (v) of the Constitution”: (2010) 243 CLR at 328. It was in that context that it was concluded that the process which was undertaken to inform the Minister as to the exercise of power conferred by s 46A(2) was to be undertaken in accordance with law. French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ concluded:

[77]    … The offshore entry person had no right to have the Minister decide to exercise the power or, if the assessment or review were favourable, to have the Minister exercise one of the relevant powers in his or her favour. Nonetheless, once it is decided that the assessment and review processes were undertaken for the purpose of the Minister considering whether to exercise power under either ss 46A or 195A, it follows from the consequence upon the claimant’s liberty that the assessment and review must be procedurally fair and must address the relevant legal question or questions. The right of a claimant to liberty from restraint at the behest of the Australian Executive is directly affected. The claimant is detained for the purposes of permitting the Minister to be informed of matters that the Minister has required to be examined as bearing upon whether the power will be exercised.

[78]    The Minister having decided to consider the exercise of power under either or both of ss 46A and 195A, the steps that are taken to inform that consideration are steps towards the exercise of those statutory powers. That the steps taken to inform the consideration of exercise of power may lead at some point to the result that further consideration of exercise of the power is stopped does not deny that the steps that were taken were taken towards the possible exercise of those powers. Nor does it deny that taking the steps that were taken directly affected the claimant’s liberty. There being no exclusion by plain words of necessary intendment, the statutory conferral of the powers given by ss 46A and 195A, including the power to decide to consider the exercise of power, is to be understood as “conditioned on the observance of the principles of natural justice”. Consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And likewise, the consideration must proceed by reference to correct legal principles, correctly applied.

26    Properly understood, Plaintiff M61 is no authority for the proposition that an administrative decision-maker is required to “complete” his or her consideration of a factual line of inquiry which may well be centrally relevant to a future exercise of statutory power but which is nevertheless a line of inquiry assuming no central relevance to the statutory power presently under consideration.

27    A consideration by the Minister in the present case of Australia’s “non-refoulement obligations” may not have been a consideration of matters irrelevant to the decision to be made. But, having pursued that line of inquiry to some extent, his consideration was not thereafter to be elevated to the position that he was required to do more than properly consider the claims being made and the factual material being relied upon by Mr Ayoub. In the present proceeding, the Minister gave genuine consideration to the claims being made and was not required to undertake further inquiries or solicit further information such that he could make a decision as to whether the return of Mr Ayoub to Lebanon – assuming that decision were to be taken – would be in breach of Australia’s obligations.

28    An exercise of the statutory power conferred by s 501 of the Migration Act does not require the same analysis to be undertaken as would be required if an application for a protection visa is made and s 36 is invoked. Nor is that analysis to be undertaken even where the Minister does take into account Australia’s “non-refoulement obligations”. It is in this context that s 501E of the Migration Act may assume some relevance. By reason of that provision, the decision of the Minister to cancel Mr Ayoub’s visa pursuant to s 501 could not operate to prevent a future application being made for a protection visa.

29    As to the latter of the two difficulties, namely an identification of those tasks which remained to be discharged if a “complete” analysis of Australia’s “non-refoulement obligations” was to be undertaken, the Appellant was unable to identify any information he had advanced for consideration which was not taken into account. And, short of requiring the Minister to make further inquiries and possibly to make further findings of fact by reference to materials not presently placed before him, the Minister had “completed” the tasks presently required of him. For this Court to require the Minister to do more would have the very real potential of propelling the Court impermissibly into merits review and inviting potentially different factual conclusions to be reached upon the basis of different facts.

30    The first Ground of Appeal is rejected.

Consideration of the risk of harm

31    The second Ground of Appeal is also expressed in a number of different ways.

32    In substance it claims that the Minister failed “to take into account a mandatory relevant consideration, being the risk of future harm to the Australian community if the appellant were to remain in Australia…”. A variant of the manner in which that argument is expressed is to claim that the Minister erroneously “relied … upon a principle that ‘a non-citizen who commits a serious crime should forfeit the privilege of staying in Australia…’”. This Ground of Appeal further claims that the “Minister failed to complete his consideration on the merits of the question whether the anticipated risk of future harm constituted an unacceptable risk of harm to the Australian community”.

33    Different views have been expressed by different Judges of this Court as to whether the “[t]he risk of harm to the Australian community” is a mandatory relevant consideration when exercising the power conferred by s 501 of the Migration Act.

34    In Tanielu v Minister for Immigration and Border Protection [2014] FCA 673, (2014) 225 FCR 424, for example, Mortimer J concluded that it was. Her Honour there canvassed the authorities and relevantly concluded:

[122]    None of the foregoing contradicts the well-established proposition that, although 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 … What is critical then is the identification of the particular relevant consideration and how the subject matter, scope and purpose of the statute might be said to require that it be taken into account …

[123]    The risk of harm to the Australian community is such a matter. 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.

The Full Court in Moana v Minister for Immigration and Border Protection [2015] FCAFC 54 had occasion to consider this conclusion of her Honour. But different views were there reached. Rangiah J, with whom North J agreed, relevantly observed:

[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 … 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.

Justice Jessup, however, dissented. In his Honour’s view, Mortimer J had “misstated the law”. In expressing his reasons for disagreeing with the conclusion of her Honour, Jessup J referred to her Honour’s reasons and her reference to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 and concluded:

[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.

35    The difference in the competing views is not easy to resolve.

36    In addition to the difference of views expressed by North and Rangiah JJ (on the one hand) and those of Jessup J (on the other), there remains an unresolved tension between the views of North and Rangiah JJ in Moana and observations of Kiefel and Bennett JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256, (2004) 139 FCR 505. Their Honours there relevantly commenced their analysis of s 501 as follows:

[72]    The Act does not state what factors the Minister is bound to consider in determining whether or not to cancel a person’s visa …

Their Honours then referred to some of the authorities and concluded:

[74] A reference to those matters confirms the breadth of the Minister’s discretion. The object of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens: s 4(1). To advance that object provision is made for the removal or deportation from Australia of non-citizens whose presence is not permitted by the Act: s 4(4). If the Minister were able, consistent with the object of the Act, to consider a matter as broad as the national interest, in determining whether a person ought to be permitted to remain in Australia, it does not seem possible to imply some obligation on the Minister’s part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed. By way of illustration, the Minister may consider that the national interest requires that the commission of a particular type of offence will inevitably result in the cancellation of a visa, where there has been a sentence to imprisonment for the requisite term. To construe the section as requiring the Minister to consider factors such as the level of involvement of the visa holder in the offences would cut across that broad discretion. It follows in our view that the obligation of which his Honour the primary judge spoke cannot be read into s 501.

Justice Wilcox dissented.

37    Although it is unnecessary in the present proceeding to resolve these competing views, reservation may nevertheless be presently expressed with respect to the concern expressed by Mortimer J in Tanielu to incorporate the risk of harm to the Australian community as “an integral aspect of the exercise of the power in s 501(2)” to ensure that the power stays “within constitutional limits…”: [2014] FCA 673 at [123], (2014) 225 FCR at 450. Other constraints upon the exercise of the power conferred by s 501, separate from the need to incorporate the risk of harm, ensure that an exercise of power remains within lawful limits. Thus, for example, any exercise of the power could not be arbitrary or unreasonable. Nor could the power be exercised to impose punishment for a criminal offence: cf. Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 at [73], (2004) 139 FCR 292 at 311 per Tamberlin, Sackville and Stone JJ. Further reason to express reservation with respect to the need to incorporate a consideration as to the risk of harm to the Australian community when exercising the power conferred by ss 501(2) and 501(6)(a) is the absence of any express reference to the risk of harm in s 501(6)(a) but the reference to “danger to the Australian community” in s 501(6)(d)(v) of the Migration Act. It may be difficult to conclude that an exercise of the power to cancel a visa by reason of a person’s “substantial criminal record” within the meaning of s 501(6)(a) is necessarily subject to an implicit constraint where a comparable constraint is expressly provided for where the basis upon which the Minister proceeds is the “significant risk” referred to in s 501(6)(d).

38    In Te Puke v Minister for Immigration and Border Protection [2015] FCA 398 at [52] to [55] Wigney J referred to the conclusions of Kiefel and Bennett JJ in Huynh but found it unnecessary to resolve the question – even if an assessment as to risk was a mandatory consideration, his Honour concluded that it had been taken into account: [2015] FCA 398 at [76] to [88]. As a “postscript” his Honour referred to the decision of the Full Court in Moana: [2015] FCA 398 at [90] to [92].

39    In the present proceeding, Senior Counsel for the Minister repeated the submission that was advanced to Wigney J in Te Puke that Tanielu was wrongly decided. The Minister now submits that the decision of the majority in Moana is also wrongly decided. In this regard, Senior Counsel for the Minister properly acknowledged the considerable hurdle that must be met to persuade this Court that an earlier decision of the Full Court is plainly wrong: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2, 150 FCR 214 at 222 [8] per Moore J, 250 to 251 [146] to [149] per Weinberg J, 256 to 257 [187] to [192] per Allsop J (as his Honour then was).

40    Notwithstanding the general importance of the principle being advanced by the Minister, it is respectfully concluded that it is unnecessary to resolve the question.

41    Irrespective of whether or not the conclusion of Mortimer J in Tanielu and the majority in Moana be correct or not, the result in the present proceeding remains the same.

42    Placed at the forefront of the Appellant’s submission were paragraphs [21] and [45] of the Minister’s Statement of Reasons. Those paragraphs in particular, it was submitted, exposed the failure on the part of the Minister properly to consider the Appellant’s “risk” of re-offending. No “particular quality of risk, or probability”, it was submitted, “was ascribed to that risk”. Expanding upon that submission, it was said on behalf of the Appellant that the “Minister refers only to ‘a risk’ of reoffending” and does “not identify … the nature of the harm…”.

43    Paragraph [21] of the Minister’s reasons occurs at that stage of his reasoning where he addressed “mitigating factors”. That part of the reasons, in its entirety, provides (without alteration) as follows:

Mitigating factors and risk of re-offending

15.    I considered the Court’s comments on 22 June 2009 that Mr AYOUB sought to do what he “felt was the right thing but in completely the wrong way, overlooking fundamental tenets of our society”.

16.    Mr AYOUB has recorded four incidents whilst in prison, including a failed urine test in June 2013 and possessing a drug implement in October 2010.

17.    Mr AYOUB has undertaken a number of rehabilitation courses while in prison, inclusive of: Personal Effectiveness Program – Mental Fitness; Controlling Anger and Leaning to Manage it, Male Australian Adaptation (CALMMAA) Program; Managing Emotions; Health Survival Program, Identify Own Essential Skills; and a Back on Track Workshop.

18.    I note comments by both the District Court of New South Wales and the New South Wales Court of Appeal that Mr AYOUB did not demonstrate remorse for his actions or that he made any restitution to the victim. Mr AYOUB has now advised that he is truly sorry for the crime he has committed and that he undertakes to never break the law again.

19.    Mr AYOUB received good behaviour bonds on 14 August 2003 and 21 January 2004. He breached both of these bonds during the operational periods, albeit he was not charged with breach of either of the bonds. Such behaviour displays a lack of respect for the Australia’s laws and reflects poorly on Mr AYOUB’s rehabilitation prospects.

20.    I note that following his release from prison, Mr AYOUB hopes to reconcile with his wife, resume living with his family and return to employment. Mr AYOUB has not submitted any evidence of support from family members or others.

21.    Mr AYOUB’s offending is a very serious nature, involving the deprivation of liberty of a person. I accept that Mr AYOUB has completed a range of courses and programs in prison. I also acknowledge that Mr AYOUB has recently articulated some remorse and has positive intentions upon release into the community, inclusive of employment. However, I also consider the Court’s comments that his behaviour overlooked ‘fundamental tenets’ of society, he displayed no remorse and made no reparation. In addition, Mr AYOUB’s institutional breaches, together with his previous disrespect for criminal laws, cause me to be mindful of the level of his insight into his offending. In all of the circumstances I consider that Mr AYOUB poses a risk of re-offending.

Paragraph [45] of the Minister’s reasons occurs in that part of the reasoning process where the Minister is expressing his “conclusion”. Those conclusions relevantly provide as follows:

CONCLUSION

44.    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 AYOUB.

45.    In reaching my decision, I gave considerable weight to the very serious nature of Mr AYOUB’s kidnapping offence. The seriousness of Mr AYOUB’s offending conduct against the community is reflected in the sentence imposed on him. Mr AYOUB’s rehabilitation has not been tested in the community and there remains a risk that he may re-offend. I have considered the principle that a non-citizen who commits a serious crime should forfeit the privilege of staying in Australia, and I find that this principle applies in this case.

The Minister then refers to Appellant’s age when he first arrived in Australia and his “family links”. Although reference has previously been made to paragraph [48], placed in context paragraphs [48] and [49] provide as follows:

48.    I acknowledge Mr AYOUB’s claim to fear return to Lebanon. However, I note that cancellation of Mr AYOUB’s visa is not inconsistent with Australia’s international obligations, as Australia will not necessarily remove Mr AYOUB to a country in respect of which a non-refoulement obligation exists.

49.    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 AYOUB was to re-offend whilst remaining in Australia. I find that this risk outweighs the countervailing considerations already addressed.

44    Paragraphs [21] and [45] of these reasons, either by themselves or when read in the context of the surrounding reasoning process, do not expose any failure on the part of the Minister to place the “risk” of the Appellant re-offending in the proper context of the offence itself and all other circumstances relevant to the present personal circumstances of the Appellant. It was not necessary, with respect, for the Minister to “ascribe” any particular characterisation to the “quality of risk” and even if there were, the Minister described the risk of harm to individuals or the Australian community as “unacceptable”. Nor was it necessary for the Minister to “evaluate the risk of harm in a particular way”: see Moana v Minister for Immigration and Border Protection [2015] FCAFC 54 at [71].

45    Reasons may be expressed differently by different Ministers. To the extent that be relevant, which may be doubted, a Minister may see fit to characterise a particular risk as “serious”: e.g., Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 at [17] to [20]. And some Ministers may see fit to try and effect some form of assessment by reference to the nature of the criminal conduct which gives rise to the exercise of the power conferred by s 501(2) and (6)(a) of the Migration Act by reference to the risk that re-offending may pose to the Australian community. In some cases a failure on the part of a Minister to do more than simply refer to there being a “risk” may evidence a failure properly to take that factor into account. A mere reference in passing to the prospect of there being a “risk” may not be sufficient for a conclusion to be reached on an application for judicial review that that factor was properly taken into account, assuming that there was a legal duty to take the factor into account.

46    Mere advertence to a matter required to be taken into consideration may not be sufficient to establish that it has been properly considered: cf. Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113 at [100], (2011) 179 LGERA 458 at 478 per Cowdroy J. The serious consequences confronted by an individual who has had a visa cancelled pursuant to s 501 may well require, in an appropriate case, such a conclusion being reached. Even a ritualistic incantation of a risk being, for example, an “unacceptable risk” or a “grave and serious risk”, may not be sufficient to clothe a statement of reasons with impunity.

47    The reasons provided in every case must each be considered by reference to the facts of each particular case and must all be construed in a practical and common-sense manner and not with “an eye keenly attuned to the perception of error”: cf. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 to 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

48    In the present case, it is concluded that the Minister properly addressed the factor of “risk” and properly took it into account in the context of the other matters set forth in his reasons. He was not required to do more.

49    A further and separate reason for reaching the same conclusion emerges if reference may be had to the Departmental Submission forwarded to the Minister and taken into account by the Minister before he made his decision. That Departmental Submission, for example:

    extracts quotations from the sentencing remarks of the District Court Judge (at paragraphs [20] and [21]), including quotations as to “the seriousness of the offending” (at paragraph [25]);

    states that it would be open for the Minister to conclude that Mr Ayoub’s “prior criminal history is relatively minor” but that his “recent offence displays an escalation in the seriousness of his offending” (at paragraph [33]) and “the risk of harm to the Australian community from his possible reoffending” (at paragraph [69]);

    refers to the absence of any remorse being expressed by Mr Ayoub at the time of sentencing (at paragraph [41]) and to his more recent expression of remorse (at paragraph [42]); and

    sets forth a slightly more expansive consideration of Australia’s “non-refoulement obligations” (at paragraphs [70] to [73]). With reference to whether the sole source of any requirement to consider such obligations is to be found within the Refugees Convention, the Departmental Submission expressly referred the Minister’s attention to the fact that Australia’s obligations are not confined to the terms of that Convention but extend to the “International Covenant on Civil and Political Rights … or the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment…” (at paragraph [70]).

Left open is the question of whether the requirement imposed upon the Minister to provide reasons by s 501G(1)(e) is to be read subject to s 25D of the Acts Interpretation Act 1901 (Cth) such that a statement of “reasons” must also (for example) incorporate a requirement to provide a statement of “findings on material questions of fact”. Even if the Minister’s Statement of Reasons is to be read by reference to the additional requirements imposed by s 25D, the risk of harm has been properly taken into account in the reasons provided. Findings on such additional matters as Counsel for the Appellant relied upon, for example in respect to an assessment as to the quality of the risk of harm, were not “findings on material questions of fact” relevant to a proper exercise of the discretion conferred by s 501: cf. Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [68], (2001) 206 CLR 323 at 346 per McHugh, Gummow and Hayne JJ. The finding of fact which may be said to be “material” is whether the question of “risk” was taken into account; it cannot further be said that the “material finding” necessarily had to be whether that risk was (for example) “serious”. If the question be framed, not in terms of whether the Minister has discharged any duty to provide a statement of “reasons”, but rather in terms of whether the Minister has taken into account different considerations in his decision-making, any residual doubt is certainly removed. The Departmental Submission to the Minister was signed by the Minister personally and a decision made that the Minister would “consider personally” the case being presented. And the greater detail set forth in that Departmental Submission – in contrast to the detail set forth in the Statement of Reasons – resolves any question as to what the Minister in fact took into account.

50    The second Ground of Appeal is rejected.

Unreasonableness

51    The final Ground of Appeal claims that the Minister’s decision, or merely his conclusion on the risk of future harm, “was affected by irrationality and/or unreasonableness…”.

52    The irrationality or unreasonableness of an administrative decision, it may be accepted, may provide a basis on which a decision may be set aside upon an application for judicial review. It may further be accepted that the legal standard of unreasonableness is not to be confined to those decisions which are “irrational” or “bizarre”: Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332. Hayne, Kiefel and Bell JJ thus observed:

[68]    Lord Greene MR’s oft-quoted formulation of unreasonableness in Wednesbury ([1948] 1 KB 223 at 230) has been criticised for “circularity and vagueness”, as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision — which is to say one that is so unreasonable that no reasonable person could have arrived at it — nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship’s judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified.

Their Honours went on to conclude:

[76]    As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

A decision to refuse an adjournment to enable an applicant more time in which to provide a further skills assessment in order to qualify for a visa was there said to be unreasonable. There must be a “logical pathway” from the material before a decision-maker to the conclusion reached: FTZK v Minister for Immigration and Border Protection [2014] HCA 26 at [6] and [13], (2014) 310 ALR 1 at 5 and 7 per French CJ and Gageler J.

53    On no view of the Minister’s reasons could it be concluded that his decision “lacks an evident and intelligible justification”.

54    The final Ground of Appeal is rejected.

CONCLUSIONS

55    Leave should be granted to further amend the Notice of Appeal.

56    None of the Grounds of Appeal as set forth in the Further Amended Notice of Appeal prevail.

57    The appeal should be dismissed with costs.

THE ORDERS OF THE COURT ARE:

1.    Leave is granted to amend the Notice of Appeal in the form of the Further Amended Notice of Appeal filed on 28 May 2015.

2.    The appeal is dismissed.

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

Associate:    

Dated:    12 June 2015