FEDERAL COURT OF AUSTRALIA

Sales v Minister for Immigration & Citizenship [2007] FCA 2094

CHARLES EDWARD SALES v MINISTER FOR IMMIGRATION & CITIZENSHIP

NSD 2230 OF 2007

FLICK J

21 DECEMBER 2007

SYDNEY

THE COURT ORDERS THAT:

Upon the Respondent’s undertaking not to remove the Applicant from Australia prior to the hearing and resolution of any appeal, and provided a Notice of Appeal is provided in time:

1.                The Application be dismissed.

2.                The Applicant is to pay the costs of the Respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 25 September 2007 the then Minister for Immigration and Citizenship concluded that Mr Sales did not pass the “character test” as defined by s 501(6) of the Migration Act 1958 (Cth).  The Minister decided to exercise his discretion under s 501(2) to cancel Mr Sales’ Transitional Permanent (Class BF) visa.

2                     Mr Sales was notified of that decision on 26 October 2007 and filed an Application seeking to review that decision with this Court on 13 November 2007.  The jurisdiction of the Court invoked is that conferred by s 476A of the Migration Act 1958 (Cth).

3                     Presently before the Court is an Amended Application which sets forth a number of grounds, including a contention that the Minister failed to consider a number of matters and failed to take into account:

1.    the Convention on the Rights of the Child;

2.    the International Covenant on Civil and Political Rights;

3.    the Universal Declaration of Human Rights; and

4.    the International Convention on the Rights of Persons with Disabilities.

Included is a ground that the Minister’s decision was “so unreasonable that no reasonable decision-maker could have made it.”

4                     The hearing of this Application was expedited on 26 November 2007 upon the basis that there was a prospect Mr Sales could be released from detention if he were successful in these proceedings.  A necessary consequence of expedition and the time of year at which this hearing takes place is that such reasons as may now be given ex tempore are more confined than may otherwise have been desirable.

5                     In support of the Amended Application, two Affidavits were sought to be relied upon. Objection was rightly taken to that material which was not before the Minister when he made his decision. The objection, at the time however, was merely noted and the hearing proceeded. Only that material which was before the Minister has been now considered: see Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 at 93–4. Confining the evidence in this way, it has been said, is:

… concomitant to the principle that the proceeding before the court is one of judicial review and it is not for the court itself to make a decision, but rather to determine whether some error of law or principle is to be found in the decision-making process itself.

No reason was advanced on behalf of Mr Sales to depart from this general approach in these proceedings.

6                     It is considered that the Application should be dismissed.

SECTION 501 AND THE CHARACTER TEST

7                     The decision taken by the Minister was that the Applicant did not pass the “character test” set forth in s 501 of the Migration Act 1958 (Cth). Section 501(2) provides that the Minister may cancel a visa if he reasonably suspects that a person does not pass the “character test”.

8                     Section 501(6) provides in relevant part as follows:

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)); …

9                     Sub-section (7) in turn provides as follows:

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.

10                  On 23 September 1989, Mr Sales was convicted of murder.  On 7 November 1997, the sentence was redetermined and he was sentenced to 14 years and 6 months’ imprisonment with an additional term of 5 years and 6 months. The Crown case was that early in 1988, Mr Sales had entered the house where the deceased was sleeping on a beanbag on the floor and he “then beat the sleeping man about the head using what has been variously described as either a cricket bat or a lump of wood.”

11                  In addition to the conviction for murder, Mr Sales has also other convictions including theft, drug and driving offences, and offences involving violence.

12                  Section 501 applies to Mr Sales: see Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72, 218 CLR 28.  See also Ruddock v Taylor [2005] HCA 48 at [36], 222 CLR 612 at 625 per Gleeson CJ, Gummow, Hayne and Heydon JJ.

A FAILURE TO CONSIDER RELEVANT CONSIDERATIONS

13                  The contention that the Minister failed to take into account relevant considerations faces a number of difficulties.

14                  “The ground of failure to take into account a relevant consideration”, it should be recalled at the outset, “can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account”: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 per Mason J.

15                  The difficulties are that first, the discretion conferred by s 501 is “unfettered” and conferred in wide and unqualified terms. The breadth of the discretion conferred and the breadth of the matters that may be taken into account has been repeatedly emphasised.  In Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256, 139 FCR 505, Kiefel and Bennett JJ observed:

Whether a relevant consideration

[71] With respect to his Honour, the fact of possession of a criminal record, the reason why a person does not pass the character test, does not of itself render the circumstances surrounding the offences committed, and the reasons for the sentences imposed for them, relevant considerations to the exercise of the minister’s discretion. A relevant consideration in an administrative law sense has a limited meaning. It is one which the decision-maker is bound to take into account in making the decision in question. The factors which the decision-maker is bound to take into account are determined by the construction of the statute conferring the discretion. If they are not stated, they are to be determined by implication from the subject-matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39–40; 66 ALR 299 at 308–9 (Peko-Wallsend) per Mason J.

[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. The nature of the minister’s discretion under s 501 of the Act has been considered in a series of cases concerning the validity of ministerial directions made under s 499 of the Act. In Aksu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 667 Dowsett J described s 501 as conferring an “unfettered discretion” upon the minister (at 670 [10]). His Honour went on to explain (at 674–5 [24]):

Section 501 prescribes failure to satisfy the character test as a condition precedent to the exercise of the discretion to refuse or cancel. It does not create any presumption as to the way in which that discretion should be exercised.

[73] This description of the discretion has been cited with approval in subsequent decisions, by Cooper J in Ruhl v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 401 and Stone J in Javillonar v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 311. And in Jahnke v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 268 Drummond J observed 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 (at 274–5 [17]).

[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.

The observations of Kiefel and Bennett JJ were referred to with approval by Heydon and Crennan JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 at [126]–[127], 228 CLR 566. Their Honours there observed:          

[129] 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. Considerations relevant to the exercise of the power depend on the nature, scope and purpose of the power, understood in its context in the Act. As ministerial direction No 21 makes clear, the minister considers that two of the factors relevant to the exercise of the discretion are related to the protection of the Australian community and the expectations of the community.

16                  The breadth of the discretion conferred, and the absence of any statutory specification that the considerations now relied upon in the Amended Application are considerations which the Minister must take into account, renders it difficult to conclude that those considerations are such that the Minister is “bound” to take them into account.

17                  At the outset of the proceedings today, counsel for the Applicant focussed attention upon two specific matters which were put at the forefront of the Applicant’s case.  These two matters were contentions that the Minister failed to take account:

1.    the fact that Mr Sales had been released from custody and was within the community from 21 December 2006 to 9 August 2007; and

2.    the fact that the Minister’s “Statement of Reasons” failed to refer to the grandchild of Mr Sales.

These matters, it was contended, so highlighted the failure of the Minister to properly consider the application that his decision must necessarily be set aside

18                  Used as a touchstone, both matters may usefully be addressed.  As to the former, there was no reference to Mr Sales being free within the community for the period mentioned in the Minister’s “Statement of Reasons”.  But the submissions made on behalf of Mr Sales referred to his babysitting the grandchild and that the letter to Mr Sales in April 2007 was addressed to him at his residential address.  From this it follows that his presence in custody or not was either of no immediate relevance to the Minister when making his decision or, if it was relevant, the Minister is taken to have been aware that Mr Sales was not in custody during the period December to August.  Further, the failure to refer to the grandchild in the“Statement of Reasons” does not vitiate the Minister’s decision.  The “Ministerial Minute” referred to the grandchild, as did the letters written on Mr Sales’ behalf.

19                  There is no obligation upon the Minister to refer to every piece of evidentiary material before him: Minister for Immigration and Multicultural and Indigenous Affairs v Applicants S194 of 2002 [2003] FCAFC 273, 79 ALD 715.

20                  Second, reliance upon “International Conventions” as the source of a consideration which the Minister is “bound” to take into account is misplaced. In AB v Minister for Immigration and Citizenship [2007] FCA 910, 96 ALD 53, Tracey J reviewed the authorities and observed:

[20] The applicant acknowledges that the Minister would have been free to make her decision, under s 501(1) of the Act, without reference to the ICCPR, the CAT or any other international treaty which had not been incorporated in Australian domestic law. It is, however, contended that, once the Minister determined that she would take Australia’s obligations under the ICCPR and the CAT into account, she was obliged to ascertain and apply the relevant treaty obligations according to their terms. If, in making her decision, the Minister misconstrued a treaty obligation and this had a material bearing on her decision, she could be said to have failed to have regard to a relevant consideration (the obligation correctly construed) or had regard to an irrelevant consideration (the misunderstood obligation).

[21] As counsel for the applicant readily conceded this aspect of his case confronted some significant difficulties. The first is that his argument assumes that a decision-maker can be bound to have regard to a consideration which he or she would otherwise be free to ignore if he or she chooses to take the particular consideration into account. The argument is made all the more difficult where the decision-maker is a Minister and the relevant statutory discretion is conferred in the widest possible terms. The difficulty is compounded when the relevant consideration is identified as a treaty obligation, correctly construed.

His Honour concluded:

[27] Australia’s unenacted international treaty obligations relating to refoulment of persons within the jurisdiction are matters to which decision-makers are entitled to have regard when exercising powers under s 501 of the Act. In the absence of legislative requirement they are not, however, bound to do so. If they do not bring them into account as part of the decision-making process no jurisdictional error will occur. If they choose to have regard to treaty obligations but, in some way, misunderstand the full extent or purport of the obligations, this will not constitute jurisdictional error. It has been held that misconstruction of a ministerial policy, by a Minister who is free to depart from it, cannot amount to reviewable error: see Nikac v Minister for Immigration, Local Government and Ethnic Affairs (1988) 20 FCR 65 at 77–78. Where the instrument concerned is an unincorporated international treaty which is subject to interpretation by a potentially wide range of international bodies it will be harder to make good an allegation of error much less jurisdictional error.

His Honour also referred to the following observations of McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6, 214 CLR 1:

[101] However, in the case law a line has been drawn which limits the normative effect of what are unenacted international obligations upon discretionary decision-making under powers conferred by statute and without specification of those obligations. The judgments in Teoh accepted the established doctrine that such obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error. …

21                  The International Covenant on Civil and Political Rights does not attract any different conclusion by reason of its inclusion as Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth). Its inclusion as Schedule 2 has not had the consequence that it has thereby been incorporated into Australian domestic law: see Minogue v Williams [2000] FCA 125 at [21]–[25], 60 ALD 366 at 372–3 per Ryan, Merkel and Goldberg JJ, citing Dietrich v R (1992) 177 CLR 292 at 359–60.

22                  Such references as are made in Ministerial Direction 21 to international obligations do not dictate any contrary conclusion.  The Minister is not bound by the Direction and any misconstruction of it by the Minister would not expose jurisdictional error: see Hopkins v Minister for Immigration and Citizenship [2007] FCA 1108 at [40].

23                  Third, the considerations which are now relied upon as not having been taken into account, namely the failure to take into account the international conventionsrelied upon, were not considerations ever advanced before the Minister as matters Mr Sales wanted to be taken into account.  On 11 April 2007 the Department wrote by registered mail to Mr Sales notifying him of an intention to consider cancelling his visa. Presumably in response to that letter, a series of letters were written supporting Mr Sales’ continued stay in Australia. These letters and their contents in summary form were as follows:

a)    a letter from Mr Sales himself stating his length of time spent in Australia, asserting that he was not a threat to himself or others, the relationship with his son and his granddaughter (Izabelle), and expressing sorrow for his “faults and stupidities”;

b)   a letter from Mr Sales’ 21 year old son Bowen, expressing that it was “great” having his father at home and being “part of the family unit”;

c)    a letter from Mr Sales’ mother stating that her son had “settled down admirably after years of incarceration” and referring to his “ardent desire to become a citizen of his country”;

d)   a letter from his sister referring to Mr Sales’ trying “very hard to make a go of his life and become a decent member of society”;

e)    a letter from his nephew referring to Mr Sales as the “only uncle I have known” and to the fact that he would “be most heart-broken if he was sent away”;

f)     a letter from his niece attaching numerous signatures of persons supporting Mr Sales’ continued presence in Australia.

24                  It is not to be expected that any response to the Department’s letter to Mr Sales should refer to the texts of international conventions or be drafted with the legal precision that may be expected of a lawyer. Indeed, the substance of the detailed factual matters that a person wants to be taken into account may even be more effectively communicated to the Department if the facts are set forth in detail and coherently expressed by those persons most immediately affected by a decision.  The personal difficulties confronting Mr Sales, including his incarceration and limited educational qualifications, have previously been referred to by Justice Allsop in Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807.  Indeed those difficulties played a large part in His Honour’s conclusion that the period of time previously allowed by the Department for the making of submissions, namely 14 days “was not fair.”

25                  It generally remains, however, the responsibility of those making submissions to make out the facts and circumstances which they want taken into account. In some circumstances, the facts and circumstances advanced before the Minister or his Department may warrant further inquiries to be undertaken: cf Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; Luu v Renevier (1989) 91 ALR 39. See also Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20, 183 CLR 273.

26                  Notwithstanding the difficulties confronting Mr Sales, and even those supporting him, it is considered in the present case that such passing references as may have been made in the various letters supporting Mr Sales’ case were not sufficient to put the Minister in the position where he was “bound” to take into account those considerations as now set forth in the Amended Application.  It is considered that the Minister took into account those matters placed before him and that he was not under any obligation or requirement to do anything beyond that.

27                  It is, for example, unsustainable to contend that such references as were made to Mr Sales’ knee injury were such that the Minister or those advising him should necessarily thereafter have referred to and addressed such issues as may possibly have arisen pursuant to the Disability Discrimination Act 1992 (Cth), let alone the International Convention on the Rights of Persons with Disabilities.  The letter from Mr Sales’ mother referred to the fact that “he cannot work owing to his crippling arthritis in his knee”.  The “Ministerial Minute” referred to the fact that Mr Sales had been “placed on a waiting list to have knee surgery” and further made observations as to his access to suitable treatment should he be removed to the United Kingdom. The Minister’s “Statement of Reasons”, it is considered, adequately addressed the issue presented by stating:

22. I have noted that Mr Sales requires knee surgery and has arranged to have that treatment in Australia, but that there is no evidence that he would be unable to obtain similar treatment in the United Kingdom.

There is no support for a contention that the Minister was obliged to go on to consider either the terms of the 1992 Act or the terms of any potentially applicable Convention.  To impose any such obligation upon the Minister is manifestly unwarranted by the terms of the discretion conferred by s 501. Nor would any such consideration of any such provisions be warranted by the materials advanced on behalf of Mr Sales to the Department.

28                  A variant of this general answer to the case, now sought to be advanced on behalf of Mr Sales, is to observe that it is not merely a case invoking the texts of international conventions to which no prior reference has been made. It is also a case (in part) in which reliance is now sought to be placed upon materials not previously identified and also not before the Minister. One ground of review thus states:

The Minister failed to take into account that as at the date of the decision the Applicant was and is 56 years of age, and is subject to an incapacitating health condition.

Expressed in such terms, the ground must necessarily fail. The “Ministerial Minute” and the Minister’s Statement of Reasons both refer to the age of Mr Sales and to his health conditions. The Applicant’s Submissions, however, expand upon this ground and make the following submissions:

In having regard to ‘the likelihood that [Mr SALES’s] conduct might be repeated (risk of recidivism’: para 4, the Minister appeared to rely solely upon the nature of the crime committed and past offences, failing to take into account High Court authority as to the prediction of dangerousness, or authoritative (or any) research on recidivism which indicates that age is a factor in whether or not offenders, particularly those convicted of murder, are likely to repeat their offences. Insofar as the Minister relied upon ‘deterrence’ as a factor, available research was not referred to. Research shows that capital punishment provides no deterrent and ‘banishment’ which was the substitute for capital punishment and foundation for Australia may similarly be regarded.

Those submissions provide detailed footnote references to decisions, including Bugmy v R (1990) 169 CLR 525, and references to various publications available online and other publications in law journals and to at least one text, namely Nigel Walker, Dangerous People (1996).

29                  Just as it is considered that there was no obligation cast upon either the Department or the Minister to characterise the submissions in fact made to him as potentially invoking an international convention, there was likewise no obligation cast upon either the Department or the Minister to research such publications as may have had some relevance to Mr Sales’ case.

30                  If the submissions as are now advanced before this Court were to be taken into account by the Minister, it was incumbent upon those advising Mr Sales to have in fact made them to the Minister. There was nothing before the Minister (or his Department) which would have occasioned any obligation to consider those materials now identified but not previously raised for consideration.

31                  A fourth difficulty confronting Mr Sales is that many of those matters which it is now contended were not taken into account were in fact considered. It is, for example, now contended in the Applicant’s Submissions that “The Minister failed to take into account or failed to give proper consideration to the length of time the Applicant has resided in Australia.”  Any submission that the Minister failed to take into account the length of time Mr Sales has resided in Australia must, with respect, fail at the outset. The “Ministerial Minute”clearly set forth the date of birth of Mr Sales and that he entered Australia when he was aged 2 years and 5 months. The “Statement of Reasons” as provided by the Minister also expressly states:

[16] I find that the Australian community may have some compassion for Mr SALES who has lived in Australia for all of his life and whose family ties lie entirely in this country.

[20] I note that Mr SALES has spent the majority of his formative years and all of his adult life in Australia. I further note that Mr SALES’s immediate family members all reside in Australia and he has no significant ties remaining in the United Kingdom.

DISGUISED MERITS REVIEW ?

32                  The view has also been independently formed that present reliance upon the international conventions to which reference is now made on Mr Sales’ behalf is but a thinly disguised attempt to review the merits of the decision taken by the Minister.

33                  The “Statement of Reasons” as provided by the Minister stated that he gave:

… primary consideration to the protection of the Australian community, taking into account the seriousness and nature of Mr SALES’s conduct, the likelihood that such conduct might be repeated (risk of recidivism) and general deterrence.

34                  The submissions now advanced on behalf of Mr Sales are really to be properly characterised as an impermissible attempt to revisit the merits of the decision made by the Minister. Those submissions are to be characterised as an argument that the Minister should have given greater weight to those considerations now relied upon by Mr Sales.  Nowhere is this made more self-evident than in the Applicant’s Submissions addressing the “failure to take into account the Convention on the Rights of the Child.” Those submissions state in part:

The Minister ignored the Convention on the Rights of the Child, and failed to take into account the ‘best interests of the child’, saying (against the evidence and the weight of the evidence)...

35                  It is also considered to be self-evident in that ground which asserts that “the Minister failed to take into account the expectations of the Australian community as expressed through the Disability Discrimination Act 1992 (Cth)”.  This ground was expanded upon in the Applicant’s Submissions as an apparent challenge as to whether the Minister is “qualified to determine upon ‘community expectations’”. Those submissions go on to contend that “if the Minister is able to determine upon ‘community expectations’ then he did so without regard to relevant considerations”. It is submitted that:

The entire thrust is toward the notion that community expectations re a person in Mr Sales’ position and Mr Sales in fact are all negative. This is unsustainable for it does not take into account community expectations in a range of ways that could be expected to be positive towards Mr Sales and persons in his position vis-à-vis for example, his childhood, his disabilities, his family relations, his longevity in Australia, and so on. Community expectations are expressed, for example, through the Disability Discrimination Act, community concern about the disruptive effects of a dysfunctional childhood, etc. All this was not taken into account by the Minister.

36                  Left to one side are questions as to whether the submissions trespass beyond the ground as formulated in the Amended Application. Indeed, left to one side has been the question as to whether the Amended Application as filed complies with the form prescribed in Form 56A of the Federal Court Rules 1979 (Cth).

37                  A recurring difficulty confronting Mr Sales is the breadth of the discretion vested in the Minister and that the assessment of the facts before him is vested by the legislature in the Minister and not the judiciary.  It is “his assessment” which matters. On the present question as to the assessment to be made as to the “expectations of the Australian community”, for example, in Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151, 139 FCR 292, Justices Tamberlin, Sackville and Stone observed:

[72] It follows from what we have said that s 501(2) of the Migration Act, on its proper construction, permits the Minister to take into account, in the exercise of his or her discretion, the effect cancellation of the non-citizen’s visa will have in protecting the Australian community. Similarly, s 501(2) is sufficiently broad to allow the Minister to take into account his or her assessment of the expectations of the Australian community as to whether or not a non-citizen who commits serious criminal offences should be permitted to remain in the country.

38                  To the extent that this ground and these submissions seek to revisit the assessment of the Minister which it is his to make, or seek to contend that the Minister was not “qualified” to make the assessment, it is rejected. To the extent that the ground and the submissions start from an assumption that there has in fact been a failure on the part of the Minister to take various matters into account, the assumption is misplaced.  Those matters were considered by the Minister.

39                  It has long been recognised that it is no part of judicial review for a court to itself examine the weight that should be given to different evidence: see R v District Court of Sydney; Ex parte White (1966) 116 CLR 644 at 655 per Windeyer J.

UNREASONABLENESS

40                  The Amended Application concludes with the ground that the “Minister’s decision is so unreasonable that no reasonable decision-maker could have made it.”

41                  As the “Ministerial Minute” made clear, Mr Sales first entered Australia when he was 2 years and 5 months old. He is now 56 years old. The effect of the decision cancelling his visa upon him and others was there considered. The “Ministerial Minute” thus stated in part:

49. In the event that Mr SALES’s visa is cancelled and he is removed from Australia, Mr. SALES’s sons and granddaughter may be denied the opportunity to develop any further relationship with their father and grandfather. It is open to you to make a finding on the effect that cancellation of Mr SALES visa and his subsequent removal from Australia may have on Bowen and Izabelle.

51. Mr SALES entire immediate and extended family reside in Australia. It is open to you to make a finding on the effect that cancellation of Mr SALES visa and his subsequent removal from Australia may have on his immediate and extended family in Australia.

Accordingly, the cancellation of the visa would clearly have serious consequences to Mr Sales and such family as he has in Australia.

42                  A decision on the part of the Minister not to cancel the visa, notwithstanding the criminal record of Mr Sales, was obviously a decision which the Minister could have made. But, equally, it could not be said that the decision in fact taken was a decision “so unreasonable that no reasonable decision-maker could have made it.”  That is especially so where the decision-maker is clothed with a discretion as unfettered as that conferred by s 501(2) of the 1958 Act.

CONCLUSION

43                  It is considered that the Amended Application should be dismissed.

44                  In reaching this conclusion, consideration has been given to each of the submissions detailed in the Applicant’s Submissions dated 14 December 2007. Notwithstanding the considerable ingenuity with which those submissions have been drafted, it is considered that no error has been exposed and that the Applicant is in essence simply disagreeing with the merits of the decision made by the Minister.

ORDERS

45                  The Court orders that, upon the Respondent’s undertaking not to remove the Applicant from Australia prior to the hearing and resolution of any appeal, and provided a Notice of Appeal is provided in time:

1.                  The Application be dismissed.

2.                  The Applicant is to pay the costs of the Respondent.

Associate:

Dated:         28 December 2007