FEDERAL COURT OF AUSTRALIA

Tewao v Minister for Immigration and Citizenship [2011] FCA 1515

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.

REASONS FOR JUDGMENT

1    Hayden Harlem Tewao is a New Zealand citizen. He arrived here about seven years ago on a temporary visa that allowed him to remain in Australia indefinitely. On 21 February 2011 a delegate of the Minister for Immigration and Citizenship cancelled his visa on character grounds pursuant to the power conferred on the Minister by s 501(2) of the Migration Act 1958 (Cth) (“the Act”). The decision was made in the wake of a conviction for aggravated robbery in May 2010 for which Mr Tewao was sentenced to three years and three months’ imprisonment. Mr Tewao appealed the delegate’s decision in the Administrative Appeals Tribunal (“AAT”). The AAT was persuaded to set aside the delegate’s decision. But on 13 September 2011, after giving Mr Tewao an opportunity to be heard, the Minister decided in any event to cancel the visa.

2    Mr Tewao applies for writs of certiorari and prohibition to quash the decision and to prohibit the Minister from acting on it. The Court’s jurisdiction is conferred by s 476A(1)(c) of the Act and is the same as the High Court’s jurisdiction under s 75(v) of the Constitution. It is common ground that to succeed Mr Tewao needs to show that the Minister’s decision was affected by jurisdictional error.

3    Relevantly, s 501A(2) gives the Minister the power to set aside a decision of a delegate or of the AAT not to exercise the power conferred by s 501(2) to cancel a visa, if the Minister reasonably suspects that the person does not pass the character test (as defined by s 501), the person does not satisfy the Minister that he or she passes, and the Minister is satisfied that the cancellation is in the national interest. The circumstances in which a person does not pass the character test are set out in s 501(6). One of those circumstances is holding a substantial criminal record as defined in subs (7). Subsection (7) provides that for the purposes of the character test a person has a substantial criminal record if (amongst other things) the person has been sentenced to a term of imprisonment of 12 months or more.

4    There was never any dispute that Mr Tewao did not meet the character test.

5    In his statement of reasons for cancellation of the visa under s 501A(2) the Minister said that in determining that he was satisfied that it was in the national interest to cancel the visa he took into account a number of factors including the seriousness and nature of the crime Mr Tewao committed. He explained further (at [7]):

I took into account that the above crime involved an unprovoked and brutal attack on another man, that it was committed with another offender and that Mr TEWAO is an exceptionally large man whose role was to be the ‘enforcer’ in the offence. After considering relevant information, I cannot be satisfied that the risk of further offending by Mr TEWAO is negligible and accordingly I found that the cancellation of Mr TEWAO’s visa is in the national interest.

6    At [27] he said that “given the nature and seriousness of Mr Tewao’s past offending, it was in the national interest to cancel [his] visa”. He went on:

I found that I could not be confident that he would not re-offend. Given the serious, violent and unprovoked nature of Mr TEWAO’S Aggravated Robbery offence, I considered any further offending by him potentially could be very serious. Consequently, I found that he represents an unacceptable risk of harm to the Australian community…

7    Mr Tewao contends that these passages expose two jurisdictional errors: the application of the wrong test (relating to the risk of reoffending) and taking into account an irrelevant consideration (his exceptional size). He also complains that he was denied procedural fairness because he was denied the opportunity to comment on these two matters before the Minister made the decision to cancel his visa. He further contends that in exercising his discretion to cancel the visa the Minister failed to take into account a number of relevant considerations. Before turning to these contentions, it is convenient to say something about the nature and circumstances of Mr Tewao’s criminal conduct upon which the Minister relied.

8    The offence carried a maximum penalty of 20 years’ imprisonment (the same as for armed robbery). It was committed with a co-offender with whom he had a close relationship. The two of them had been drinking heavily at a hotel when they decided to buy some cannabis. The sentencing judge found that they were both drunk and also likely to be affected by drugs. After buying cannabis from a man in the hotel, they went outside for a smoke. They saw the man again and decided to rob him. Mr Tewao then approached the victim. Mr Tewao is 2.1 m tall and weighs about 200 kg. In her submission to the Minister his solicitor explained that he has “gigantism”, which, she said, is a hereditary disease caused by abnormal hormone levels. The AAT described him in the following way:

Mr Tewao stands at seven feet tall. He is a huge man … with shoulders like buttresses and legs like pylons. His hands, as fists, resemble demolition balls.

9    The sentencing judge, whose remarks were before the Minister, said that Mr Tewao “no doubt supplied the force in the offence”. He noted that the victim must have entertained a substantial level of fear when confronted by Mr Tewao. He found that Mr Tewao punched him and battered his face. He also found that he caused lacerations, swelling, a broken nose or nasal bone, a broken orbital bone, and another broken facial bone. He further found that after the assault the pair then took off with the victim’s wallet containing $400 cash, his driver’s licence, various cards, a mobile phone and a set of keys. He described the offence as “a brutal bashing and robbery of a peaceful young man who offered no provocation at all”.

10    There were two other convictions on Mr Tewao’s record but, as they do not appear to have featured in the Minister’s decision-making, it is unnecessary to mention them further.

Did the Minister apply the wrong test?

11    Mr Tewao submitted that the Minister applied two tests. One, he argued, imposed a requirement that the visa should be cancelled if the risk of recidivism is no higher than negligible, the second, that the visa will be cancelled unless the Minister could be confident that the applicant would not reoffend. He also submitted that the Minister applied these tests without giving him an opportunity to be heard, and so was denied procedural fairness.

12    The question of what is in the national interest is an evaluative one (Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 (“Madafferi”) at [89]), entrusted to the Minister alone. The factors to which the Minister may have regard in determining the national interest are not set out in the Act. But it may be accepted that it is in the national interest to protect the Australian community from violent crime. Crimes of which a person has been convicted may be of such seriousness or the circumstances in which they were committed of such a nature as to properly found the satisfaction that it is in the national interest that the person’s visa be cancelled: Re Patterson; ex parte Taylor (2001) 207 CLR 391 (“Re Patterson”) at [79]; Madafferi at [86].

13    The Minister made his decision by reference to the nature and seriousness of Mr Tewao’s conduct and the circumstances surrounding the commission of the crime.

14    It is clear that the Minister had regard to the same conduct for two purposes – in the application of the character test and in determining what was in the national interest. But he was entitled to do this, provided there was something in the nature or the seriousness of the conduct or its surrounding circumstances to found his state of satisfaction. See Re Patterson at [80] per Gaudron J. Here, this proviso was satisfied. That is what the Minister was adverting to in paragraph [7] of his statement of reasons. Indeed, the Minister said as much at [27].

15    In my view the Minister did not apply two tests or the wrong test. A test is a rule of general application. The Minister’s remarks do not signify that he imposed a general requirement that a visa should be cancelled unless the risk of reoffending was not negligible or he could be confident the visa holder would not reoffend. The Minister was making a judgment about the import of the risk in the particular circumstances of the case before him. In an individual case a low level of risk can have very serious consequences. It is well accepted that a risk may properly be regarded as substantial, despite a low probability of reoffending, if great harm would result. See, e.g. Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81 per Davies J.

16    The evidence presented to the Minister was that the risk was low or low-moderate (a clinical psychologist, Dr Christopher Lennings, who provided an opinion to Mr Tewao’s solicitors, characterised it in his report as “towards the low end of the moderate range”, later describing it as “low-moderate”; the AAT described it as “low”). It was open to him to conclude from the facts of the offence itself that there was a potential for very serious harm if this risk eventuated, and that consequently any appreciable risk was unacceptable. It is common ground that the risk of reoffending was a relevant consideration. Plainly, the finding was available that the risk of reoffending was not negligible. The Minister was entitled to take that circumstance into account in determining what was in the national interest.

Procedural fairness

17    I now turn to consider the claim that Mr Tewao should have been told what the Minister was proposing and was denied procedural fairness.

18    Mr Tewao does not contend that he was not given an opportunity to be heard on the question of his risk of reoffending. Indeed, he availed himself of the opportunity, making lengthy submissions through his solicitor on the subject. His point is that he should have been told that the Minister was going to apply a test that an applicant’s visa should be cancelled if the risk of recidivism was no higher than negligible, a test that was not mentioned in Direction No. 41 – Visa Refusal and Cancellation under s 501 (“the Direction”).

19    The point must be rejected for a number of reasons.

20    First, as I have concluded, the Minister did not apply such a test.

21    Secondly, the Direction was issued by the Minister under s 499 of the Act to persons or bodies having functions or powers under the Act. The Direction bound the delegate and the tribunal, but not the Minister: s 499(2A). In fact, it did not apply to a decision under s 501A. It dealt with the character test and the exercise of the discretion under s 501. With the notice the Department sent Mr Tewao on 5 July 2011, informing him that the Minister was intending to consider whether to set aside the AAT’s decision and cancel his visa, the Department enclosed a copy of the Direction, together with the other documents the Minister would consider (including the judge’s sentencing remarks). Mr Tewao was advised that the Minister was not bound by the terms of the Direction but might take the factors mentioned in it into account.

22    Thirdly, I am not satisfied that Mr Tewao was not on notice that the Minister might weigh the risk of him reoffending against the seriousness and nature of his criminal conduct. There are a number of references to the risk of reoffending in the Direction. In particular, paragraph 5.2(2) provides that in reaching a decision on whether to cancel a visa a decision-maker needs to consider the nature of the harm the person may cause to the Australian community and the risk of that harm occurring. It provides that one of the primary considerations in deciding whether to cancel a visa is the protection of the Australian community from serious criminal or other harmful conduct, especially crimes involving violence (paragraph 10(1)(a)). Paragraph 10.1.2(1) provides that the person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of reoffending. Paragraph 10.1.2(2)(a) specifies that one of the factors considered as particularly relevant to the assessment of the risk of reoffending is a recent history of convictions. Paragraph 10.1(2) relevantly states that the factors relevant to assessing the level of risk of harm to the community of the person’s continued stay include the seriousness and nature of the relevant conduct and the risk that conduct may be repeated. It is implicit that a balancing of these considerations might take place.

23    Fourthly, the rules of natural justice are flexible, requiring fairness in all the circumstances (Kioa v West (1985) 159 CLR 550) but fairness does not require the Minister to expose either his thought processes or his provisional views (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48]).

Did the Minister have regard to irrelevant considerations?

24    Mr Tewao contends that, in having regard to his size, the Minister took into account an irrelevant consideration. He also contends that he was not given an opportunity to be heard on the matter before the decision was made. Each of these contentions must be rejected.

25    The first contention rests on the notion that the Minister treated his size as a discrete factor, independent of the offence, justifying the conclusion that the national interest required that his visa be cancelled. In my view, the Minister did not approach the matter in this way. That is apparent from the opening words of paragraph [7] of the statement of reasons and the inclusion of the clause that follows the reference to size.

26    The inference was available to the Minister that Mr Tewao’s size was a factor in the offence. No doubt that is what the Minister was referring to when he said his role in the offence was as the “enforcer”. It was Mr Tewao’s size that was likely to have instilled fear into his victim. The issues paper presented by the Department to the Minister referred to Mr Tewao’s size in this way. The author said that if Mr Tewao were to reoffend, his size and strength may increase the risk of serious outcomes. It is plain that what the Minister had in mind when he referred to Mr Tewao’s size was that it played a role in the commission of the offence and contributed to the brutality of the attack. No doubt that is why he felt that a low-moderate risk of reoffending was too high a risk to take in this case. Thus it can be seen that Mr Tewao’s size was patently not irrelevant.

Procedural fairness

27    Mr Tewao submitted that he should have been heard on the question of his size because it was not a consideration referred to in the Minister’s published Direction, setting out the broad policy and approach to the making of such decisions, which he had a legitimate expectation would be followed.

28    This submission proceeds on the premise that I have already rejected, namely, that the Minister treated Mr Tewao’s size as a discrete factor in the assessment of the national interest. As his size was a factor in the offence, as the nature and circumstances of the offence was a factor mentioned in the Direction, and as Mr Tewao was encouraged to address the factors in the Direction, I am not persuaded that he was denied procedural fairness.

Did the Minister fail to have regard to relevant considerations?

29    Mr Tewao also claims that the Minister failed to have regard to a number of relevant considerations in the exercise of his discretion and thereby committed jurisdictional error. Those considerations are said to be:

(a)    The report of Dr Lennings;

(b)    The findings of the AAT, including the evidence of Dr Lennings as to the risk of recidivism;

(c)    Mr Tewao’s history of rehabilitation and good behaviour since his release from custody; and

(d)    Mitigating factors such as his intellectual shortcomings and his previous substance abuse.

30     This claim is similarly without substance.

31    Before a relevant consideration can be held to have vitiated an administrative decision, it must be one that the decision-maker was bound to take into account. Where, as here, the discretion is unconfined, the Court will not find that the decision-maker is bound to take any matter into account unless there is such an implication in the subject-matter, scope and purpose of the statute conferring the discretion: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. Ignoring relevant material will amount to jurisdictional error where it affects the exercise of power: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]-[84].

32    The Minister submitted that none of the matters Mr Tewao raised was a relevant consideration in this sense. I agree. The concept of the national interest is a very broad one. 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). And it is to advance that object that the Act provides for deportation and removal of non-citizens whose presence is not permitted by the Act: s 4(4). In circumstances where the Act permits the Minister to have regard to something as broad as the national interest, Kiefel and Bennett JJ did not think it possible to imply an obligation on the part of the Minister to consider specific factors, personal to the visa holder: Minister for Immigration and Multicultural Affairs v Huynh (2004) 139 FCR 505 at [74]. That seems to me to follow from what was said in Patterson and Madafferi (see [12] above).

33    In any event, with one possible qualification, there is no reason to suppose that the Minister did not have regard to them and good evidence that he did.

34    First, at [16] of his statement of reasons, the Minister said he took into account the psychologist’s assessment, noting his finding that the risk of Mr Tewao reoffending was “low-moderate”. The psychologist was Dr Lennings.

35     Secondly, the Minister also said (at [12]) that he took into consideration that Mr Tewao had been assessed as having a mild to moderate degree of intellectual deficiency and that he was affected by drugs and alcohol at the time he committed the offence. He referred to the AAT’s decision at [3]. He did not say that he had taken into account the AAT’s findings, but there is nothing in the subject-matter, scope and purpose of the Act that implies he is bound to have regard to them. He was not conducting a review or appeal of the AAT’s decision. He did not need to satisfy himself that the AAT was wrong. The AAT was not concerned with the national interest. The factors he was required to consider are set out in s 501A(2) of the Act. They do not include the findings of the AAT, neither expressly nor implicitly. In any case, the AAT’s findings on various matters were mentioned in the issues paper, which it is reasonable to infer the Minister read.

36    That disposes of the first, second and fourth matters.

37    The third matter is pleaded in the following way:

The decision is afflicted by jurisdictional error in that the Respondent failed to have regard to a number of relevant considerations, namely:

…

c.    Failure to properly consider the Applicant’s history of rehabilitation and good behaviour since release from custody…

38    This is a troubling pleading. It implicitly accepts that the Minister did consider Mr Tewao’s history of rehabilitation and good behaviour since his release from custody but quarrels with the degree of attention given to it. Indeed, the Minister did consider these matters. He said he noted (at [17] of his statement of reasons) that Mr Tewao was living with his parents and had regular employment. At [14] he said he took into account that his behaviour in prison was considered generally good, particularly regarding his work, despite some infringements of prison discipline, and the Court’s views which expressed some hope for his prospects of rehabilitation. The weight to be attached to the evidence was entirely a matter for the Minister. In that regard it should be noted that Mr Tewao had only been admitted to parole on 10 March 2011, six months before the Minister made his decision.

39     It is true that the Minister did not refer to all the evidence touching on this issue but that alone does not denote jurisdictional error: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46]. As Allsop J said in Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 at [57] (cited with approval by Cooper and Finkelstein JJ in Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at [29]):

Yusuf does not stand for the proposition that a relevant consideration has not been taken into account and the decision-maker thereby has failed to embark on or complete his or her jurisdictional task merely because some piece of evidence which the court thinks is relevant in the evidential or probative sense can be seen not to have been weighed or discussed.  ‘Relevant’ for this purpose means that the decision-maker is bound by the statute or by law to take this into account.

[References omitted.]

40    Mr Tewao argued in the alternative that the Minister failed to “demonstrate a proper, realistic and genuine consideration” of the four matters, submitting, variously, that this did not occur because he did not take them into account or because merely mentioning the matter did not mean that it was given proper, realistic and genuine consideration. See, for example, Lafu v Minister for Citizenship (2009) 112 ALD 1. Although this is not pleaded as a separate ground, the Minister did not object to the submission being put. He contented himself with pointing out the difficulties with the argument.

41    Basten JA in Swift v SAS Trustee Corporation [2010] NSWCA 182 (in a passage cited with approval by seven judges of the High Court in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [30]) explained at [45]:

The language of “proper, genuine and realistic consideration” was introduced into administrative law in Khan v Minister for Immigration, Local Government and Ethic Affairs (1987) 14 ALD 291 and Broussard v Minister for Immigration and Ethnic Affairs (1987) 21 FCR 472 at 483 (Gummow J). That which had to be properly considered was “the merits of the case”. Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review…

42    The Minister gave the weight to the four matters he considered they deserved. That does not signify jurisdictional error.

Conclusion

43    None of the grounds is made out. The Minister’s decision is not infected by jurisdictional error. Accordingly, the application must be dismissed. Mr Tewao should pay the Minister’s costs.

Associate:

Dated:    23 December 2011