FEDERAL COURT OF AUSTRALIA

Romano v Minister for Immigration and Citizenship [2011] FCA 1351

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

INtroduction

1    This is an application to review the decision of the respondent (‘Minister’) to cancel the applicant’s Class BF transitional (permanent) visa under s 501(2) of the Migration Act 1958 (Cth) (‘the Act’).

2    Under s 501(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.

3    Under s 501(6)(a), a person does not pass the character test if the person has a substantial criminal record (as defined by s 501(7)) and, under s 501(7)(c), a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

4    The Minister found that the applicant had a substantial criminal record, as a result of his conviction, upheld by the NSW Court of Criminal Appeal on 4 November 2004 (R v Romano [2004] NSWCCA 380), for, inter alia, causing a child under 14 to participate in child prostitution, for which the applicant received a sentence of nine years imprisonment. As a consequence, the Minister found that the applicant did not pass the character test, referring to ss 501(6)(a) and (7)(c).

5    The Minister’s decision was notified by letter dated 13 July 2011. The applicant had first been given notice by letter dated 4 November 2010 that cancellation of his visa would be considered. He was represented by the Public Interest Law Clearing House (‘the applicant’s representatives’), who made submissions on his behalf on 31 January 2011. It was conceded by the applicant’s representatives that the applicant did not pass the character test, and no issue is now taken by the applicant with that part of the Minister’s findings.

6    The decision to cancel the applicant’s visa was made by the Minister personally, not by a delegate, and is not reviewable by the Administrative Appeals Tribunal under s 500(1)(b), nor by the Federal Magistrates Court under s 476(2)(c), but only by this Court under ss 476A(1)(c) and (2).

The Originating Application for Review

7    The applicant’s originating application filed 17 August 2011 claims:

(1)    A Writ of Certiorari issue quashing the decision of the Minister dated 11 July 2011.

(2)    A Writ of Mandamus issue requiring the Minister to re-determine the cancellation of the applicant’s visa according to law.

8    The applicant no longer seeks a Writ of Mandamus.

9    There are two grounds of the application both relating to the Minister’s treatment of the best interests of the applicant’s two grandchildren.

10    The first: that the Minister failed to take account of a relevant criteria. This is particularised in the following way:

(a)    (i)    The applicant’s submissions disclosed that he has two grandchildren whose best interests may be affected by the Minister’s decision.

(ii)    The Minister failed to take account of the best interests of these children.

Alternatively,

(b)    the Minister, by failing to identify the best interests of the applicant’s grandchildren, failed to have any real regard to the best interests of the children.

11    Second: The Minister failed to provide the applicant with procedural fairness. This is particularised in the following way:

(i)    If the Minister did not intend to treat the best interests of the applicant’s grandchildren as a primary consideration, the rules of procedural fairness required that he give the applicant notice of that intention and the opportunity to make submissions in respect thereof.

(ii)    As the Minister gave the applicant no such notice, he was denied procedural fairness.

The Material Before the Minister

12    In making his decision, the Minister had before him a detailed submission from his department which –

–    indicated the issues falling for consideration;

–    gave the details of the visa holder, his immigration background, steps that had been taken to notify the applicant that cancellation of his visa was being considered and to ensure that procedural fairness was given;

–    noted submissions received in his support;

–    explained how the applicant may be found not to pass the character test;

–    discussed the matter in terms of Direction [no. 41] – Visa refusal and cancellation under s 501 (‘Direction 41’) (issued under s 499 of the Act); and

–    listed the evidence or other material referred to in the submission which it attached. The attachments were the documents at AB38-121, plus the ‘Australian Federal Police Criminal History Report dated 3 February 2009’, which the index described as ‘attachment X’ and noted was a protected document under s 503A of the Act.

13    The department’s submission to the Minister noted at [23] that Direction 41 did not apply to the exercise by the Minister personally of power under s 501(2), but that it was open to the Minister to be guided by the factors set out in that document if he so chose. The same paragraph explained that in balancing the relevant factors, the Minister was free to give whatever weight he wished and also noted that the discussion in the submission itself would be structured for convenience in accordance with the matters set out in Direction 41.

The Minister’s Reasons

14    The Minister’s reasons, and his conclusion based on those reasons, are embodied in a four page statement signed by the Minister and dated 11 July 2011 (AB5-8).

15    As noted in [4] above, the Minister found that the applicant had a substantial criminal record, as a result of his conviction, upheld by the NSW Court of Criminal Appeal, for causing a child under 14 to participate in child prostitution, for which the applicant received a sentence of nine years imprisonment. As a consequence, the Minister found that the applicant did not pass the character test.

16    The Minister then proceeded to consider the discretionary component of s 501(2). In so doing, he indicated that whilst not bound by Direction 41, he was proceeding in accordance with it. The Minister submitted that the fact that he chose to proceed in accordance with the direction, is itself an indication that he accepted the best interests of any children aged less than 18 years as a primary consideration.

17    His statement read that he gave ‘primary consideration to the protection of the Australian community, (taking into account the seriousness and nature of the conduct and the risk that the conduct may be repeated), the age at which [the applicant] commenced living in Australia, the length of time that [the applicant] has lived in Australia and any relevant international obligations’. He then expanded on each of those at [5] to [23]. Under the heading ‘International Obligations’ and the sub-heading ‘Best Interests of the Child’, the Minister found (at [22]):

‘The evidence available to me does not indicate that there are any children whose best interests may be significantly affected by cancellation of Mr Romano’s visa’.

18    The Minister was certainly mindful that Mr Romano had grandchildren, since, at [24], the Minister noted (inter alia) that the applicant’s ‘three sons, grandchildren, parents and his sibling all reside in Australia’. Also, it is likely that they were all contemplated by the expressions ‘family links in Australia’ and ‘his family members’, both at [28] on the following page. The extent to which the grandchildren were noted in the submission which went to the Minister and its annexures provide further support for the proposition that the Minister was aware of the grandchildren and how they were claimed to be affected. Given that the Minister was plainly aware of the existence of the grandchildren, who were indicated in the department’s submission to be under 18 years of age, and given that his attention was there drawn to submissions from outside the department in relation to them, including a submission against cancellation that they would ‘be denied the opportunity to know Mr Romano’, [22] of the Minister’s reasons, reproduced in [17] above, should be understood to indicate a view that, any adverse affectation of their interests (in this case) was not ‘significant’. That is not to deny that the interests of the children were a ‘primary’ consideration. It is simply to find as fact that in this case the children in question would not be ‘significantly affected’ by cancellation of Mr Romano’s visa.

19    The Minister also considered under the heading ‘Other (non-primary) Considerations’, not only the residence in Australia of the three sons, grandchildren, parents and sibling, but also the submissions made by the applicant’s son and sister, emotional and financial hardship that they may suffer in the event of the applicant’s removal from Australia, the inability of the applicant’s elderly parents to visit him in Italy, the hardship his removal may cause them, the medical condition of the applicant, the availability in Italy of comparable health facilities to Australia, the hardship that the applicant may suffer in Italy after 43 years absence and language and cultural barriers he may experience upon return after such long absence.

20    Significantly, the Minister indicated that the things that he considered included not only the character test and Direction 41, but also ‘all other evidence available to me, including evidence provided by, or on behalf of, Mr Romano’. The applicant’s grandchildren were mentioned in the applicant’s representatives’ submission, a submission from the applicant’s sister (Mary Romano) and a submission from the applicant’s son (Anthony Romano). The applicant’s representatives noted that the existing grandchildren (there was another expected, the submission noted) were born while the applicant was in prison and he has had ‘limited contact’ with them, but also said (as noted at [18] above) that the grandchildren will be ‘denied the opportunity to know Mr Romano’ if he is removed. The applicant did not claim any ‘parental type’ relationship with his grandchildren.

21    Ultimately, at [28], the Minister referred in some detail to the ‘serious and abhorrent nature of Mr Romano’s offences’, their ‘impact ... on the victims due to their age and vulnerability’, and more recent offences on bail ‘for the purpose of preventing his victims from testifying against him’. The Minister also there mentioned the applicant’s ‘positive’ ‘general behaviour in prison’, his participation in rehabilitation, his age on arrival (which, earlier in the reasons, at [20], had been noted to have been two years of age), his 43 years residence in Australia, his ‘family links in Australia’ and that ‘the Direction indicates that in such circumstances it may be appropriate for the Australian community to accept more risk’. The Minister then concluded:

‘[28] ... However, given the seriousness of Mr Romano’s past offending, I find that in this case the protection of the Australian community is paramount and, even if there was only a relatively low risk of him re-offending, the risk of harm to the Australian community is unacceptable and consequently is not outweighed by the countervailing considerations of his age on arrival, his length of residence, any negative impact on family members and any difficulties he may face in Italy.

[29]     Having given full consideration to all these matters, I decided to exercise my discretion to cancel Mr Romano’s Class BF transitional (permanent) visa under s501(2).’

Consideration of Grounds of Review

Ground 1 – failure ‘to take account of a relevant criteria [sic]’

22    At a factual level, the first particular to this ground (see [10(a)(i)] above) is already answered, in effect, by how the Minister’s reasons, read fairly in context and in accordance with the approach required by Minister for Indigenous and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 – 272, should be understood. In my view, the Minister did take into account, as a primary consideration, the best interests of the grandchildren, but, on the facts of this particular case, did not consider that they would be ‘significantly affected by the cancellation of [the applicant’s] visa’ and concluded that ‘any negative impact upon [the applicant’s] family members’ – at least implicitly including the grandchildren – did not outweigh the factors favouring cancellation that he emphasised in his conclusion at [28].

23    There are other difficulties with the ground. The best interests of the grandchildren was not a criterion that the Minister was legally bound by the Act to take into account. It was not a mandatorily ‘relevant’ consideration in the requisite sense (described in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 per Mason J). The best interests of any children under 18 years of age was a ‘primary consideration’ under Direction 41, amongst other ‘primary considerations’, but the Minister acting personally under s 501(2) was not bound by such a direction under s 499, even though it was open to him to use it as a guide: see Hopkins v Minister For Immigration and Citizenship [2007] FCA 1108 at [40]; Minister for Immigration and Multicultural and Indigenous Affairs v George (2004) 139 FCR 127 at [16]; Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172 at [10]; Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 at [31].

24    The breadth of the Minster’s discretion under s 501(2) and his wide authority to choose what factors are relevant to the exercise of that discretion is well acknowledged by the authorities: see Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at [71] – [74] and Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at [126] – [127].

25    The second particular to this ground (see [10(a)(ii)] above) also does not aid the applicant’s case for two reasons.

26    First, the argument was advanced by the applicant in support of the principal contention that there was failure to have regard to a relevant consideration, but the best interests of the grandchildren were not (for the Minister deciding personally) a mandatorily ‘relevant consideration’ in the Peko-Wallsend sense.

27    Secondly, even where the best interests of the child must be taken into account as a primary consideration (e.g. where the power to cancel under s 501(2) is being exercised by a delegate bound by Direction 41), the decision-maker does not need to expressly identify whether the best interests of the child are served by a decision one way or the other upon cancellation. It may be inferred, depending upon the evidence, that the best interests of the child were considered to be served by a decision not to cancel: Hopkins at [28]–[36]; Minister for Immigration and Multicultural Affairs v W157/OOA (2002) 125 FCR 433 at [77] per Branson J, with whom Goldberg J at [84] and Allsop J at [88] relevantly agreed; Nguyen Van Son v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 875 at [36] per Nicholson J; Chai v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1460 per Madgwick J at [47] – [48]. In any event, the ultimate question would remain whether the best interests of the child were taken into account (assuming, contrary to the view expressed in [23] above, that they were a ‘relevant consideration’ in the requisite sense): see Hopkins at [34]. I would infer that the words ‘any negative impact upon [the applicant’s] family members’ at [28] included the effect of cancellation upon the applicant’s grandchildren.

28    The third particular to this ground (see [10(b)] above) does not rise above an attempt to cavil with the weight given by the Minister to something that was ultimately for him alone to weigh. That matters of weight are for the decision-maker, absent statutory prescription, is clear. A relatively recent example of such authority is Minister For Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [23], [33], [38] – [40].

Ground 2 – alleged denial of procedural fairness by, it is said, failing to inform the applicant that the best interests of the grandchildren would not be taken into account as a primary consideration and not allowing the applicant a reasonable opportunity to make submissions

29    The short answer to this ground is that it rests on a false premise. In my view, the Minister did take into account the best interests of the grandchildren as a primary consideration. This is simply a case where that primary consideration was outweighed ultimately by other factors including the protection of the Australian community (another ‘primary consideration’), as summarised above. That was partly because, in this case, the Minister was of the view that the interests of the grandchildren were not significantly affected.

Conclusion

30    There was no jurisdictional error by the Minister. The application must be dismissed, with costs.

Associate:

Dated:    30 November 2011