FEDERAL COURT OF AUSTRALIA

Maurangi v Honourable Chris Bowen MP, Minister for Immigration and Citizenship [2012] FCA 15

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

1    This is an application for judicial review of a decision of the Minister for Immigration and Citizenship (Minister) made on 12 September 2011 cancelling the applicant’s visa, and for the issue of the constitutional writs prohibiting the Minister acting upon that decision and quashing that decision.

2    The applicant claims that the Minister acted in jurisdictional error by having regard to an irrelevant matter and/or misconstruing the nature and purpose of the power given under s 501A of the Migration Act 1958 (Cth) (the Act).

3    This Court has jurisdiction to entertain an application of this kind because it is an application to review a privative clause decision made personally by the Minister under s 501A of the Act: s 476A(1)(c) of the Act.

Legislative Framework

4    Section 501(1) provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. Section 501(2) empowers the Minister to cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that the person passes the character test. A decision under s 501(1) or s 501(2) may be made by the Minister’s delegate and is subject to review by the Administrative Appeals Tribunal (AAT). If the decision is reviewed by the AAT, the AAT stands in the place of the Minister’s delegate for the purpose of the review.

5    Section 501(3) empowers the Minister to refuse to grant a visa to a person or cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test, and the Minister is satisfied that the refusal or cancellation is in the national interest: s 501(3). The power in s 501(3), unlike the powers in s 501(1) and s 501(2), can only be exercised by the Minister: s 501(4). If the Minister exercises the power given to the Minister in s 501(3) the rules of natural justice and the code of procedure set out in the Act do not apply to that decision: s 501(5).

6    The character test is defined in s 501(6). A person does not pass the character test if the person has a substantial criminal record: s 501(6)(a). A substantial criminal record is defined in s  501(7) as follows:

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

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

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

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

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

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

7    Section 501A is engaged if the Minister’s delegate or the AAT has made a decision under either s 501(1) or s 501(2) not to refuse to grant a visa to a person or not to cancel a visa that has been granted to a person.

8    Section 501A(1) provides:

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision (the original decision):

(c)    not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or

(d)    not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;

whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test.

9    The precondition to the Minister’s exercise of power under s 501A(1) is that the Minister’s delegate or the AAT have in the case of a person who has been granted a visa made a decision of the kind mentioned in s 501A(1)(d).

10    If s 501A is engaged the Minister may act under either s 501A(2) or s 501A(3). Section 501A(2) provides that the Minister must, if acting under that subsection, apply the rules of natural justice. Section 501A(3) provides that, if the Minister is acting under that subsection, the Minister need not apply the rules of natural justice. In this case s 501A(2) is relevant, and it provides:

(2)    The Minister may set aside the original decision and:

(a)    refuse to grant a visa to the person; or

(b)    cancel a visa that has been granted to the person;

if:

(c)    the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(d)    the person does not satisfy the Minister that the person passes the character test; and

(e)    the Minister is satisfied that the refusal or cancellation is in the national interest.

Whether Minister’s Jurisdiction was Engaged

11    The applicant did not contend in the application seeking a review of the Minister’s decision that the Minister did not have power to make the decision complained of because the preconditions in s 501A(1)(a) and (b) had not been satisfied in that neither the delegate of the Minister nor the AAT had made a decision of the kind mentioned in s 501A(1)(d), and that issue was not raised at the hearing. After the hearing of this application I asked my Associate to raise with counsel whether it was contended on behalf of the applicant that s 501A had not been engaged, and if so whether the respondent disputed that contention.

12    The parties provided further submissions in which the applicant contended that s 501A had not been engaged, and the Minister contended that it had.

13    The applicant’s contention was that s 501A was not engaged because neither the delegate of the Minister nor the AAT had made a decision not to exercise the power conferred by s 501(2) to cancel a visa that had been granted to a person. It is necessary therefore to determine what decisions were made before the Minister made his decision on 12 September 2011.

14    On 18 March 2011 a delegate of the Minister decided to cancel the applicant’s visa on the ground that the applicant did not pass the character test. It follows therefore that s 501A(1)(a) does not apply because the delegate of the Minister has not made a decision not to exercise the power conferred by s 501(2) to cancel the applicant’s visa. Rather, the delegate has in fact made a decision to exercise the power to cancel that visa. The question is whether s 501A(1)(b) has been engaged, and whether the AAT has made a decision not to exercise the power conferred by s 501(2) to cancel the applicant’s visa.

15    After the delegate of the Minister made the decision on 18 March 2011 the applicant applied to the AAT for a review of the delegate’s decision.

16    In the AAT’s reasons, which were published on 15 June 2011, Senior Member Dunne said:

[67]    For the reasons outlined above, I find there is a low risk to the protection of the Australian community were Mr Maurangi to remain in Australia. The anomalous nature of his serious crime, his family support and his prospects for rehabilitation from drug and alcohol abuse lead me firmly to that conclusion. I find that Mr Maurangi’s ties to Australia are not accurately reflected by the length of time he was resident here before he first offended and that the presence now of his close family members, even though he may intend to go his own way, means that his ties to Australia are strong.

[68]    I find that Mr Maurangi and his close family would suffer significant hardship if he were to return to the Cook Islands or New Zealand. Any remaining links that he may have to the Cook Islands would not be to his benefit. Finally, I find that Mr Maurangi was not formally advised of and did not understand what was at stake when he committed his serious crime. I consider that Mr Maurangi does not pose an unacceptable risk to the Australian community and that the low risk he poses is outweighed by the remaining consideration. On balance, the weight of consideration falls against the cancellation of Mr Maurangi’s visa.

17    He then made a decision:

[69]    I set aside the decision under review and remit the matter to the respondent with a direction that the discretion under s 501(2) of the Act to cancel Mr Maurangi’s visa not be exercised.

18    Section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) sets out the powers that the AAT may exercise in reviewing a decision. Section 43(1) provides:

(1)    For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)    affirming the decision under review;

(b)    varying the decision under review; or

(c)    setting aside the decision under review and:

(i)    making a decision in substitution for the decision so set aside; or

(ii)    remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

19    In this case the AAT set aside the delegate’s decision and remitted the matter to the delegate for reconsideration with a direction that the discretion under s 501(2) of the Act to cancel the applicant’s visa not be exercised. That course was available to the AAT under s 43(1)(c)(ii).

20    The effect of the AAT decision is that the delegate of the Minister should make a decision in accordance with the direction not to exercise the power conferred by s 501(2) to cancel the applicant’s visa. In fact no such decision has been made by the delegate in accordance with the AAT’s direction, so the question is whether the Minister acted prematurely in exercising the power under s 501A because the AAT had not made a decision for itself not to exercise the power conferred by s 501(2) to cancel the applicant’s visa. In other words, the question is whether the AAT has made a decision not to exercise the power conferred by s 501(2) to cancel the applicant’s visa.

21    The applicant contended that the AAT had not made a decision of the kind mentioned in s 501A(1)(d), and therefore s 501A was not engaged and the Minister’s decision was made without jurisdiction. He argued that the AAT’s decision to remit the matter to the delegate of the Minister could not be characterised as a decision not to exercise the power conferred by s 501(2) to cancel a visa that had been granted to the applicant within the meaning of s 501A(1)(d) of the Act.

22    The Minister on the other hand contended that the decision made by the AAT was a decision of the kind mentioned in s 501A(1)(d) and should be recognised as a refusal by the AAT to exercise the power conferred by s 501(2). Therefore, it was argued, s 501A had been engaged.

23    The Minister also argued that to hold otherwise would lead to the absurdity that the AAT could in fact immunise its decision from such exercise of power simply through its own choice of how its decision takes form within the terms of s 43(1)(b) or (c) of the AAT Act. It was submitted that such a construction should be rejected on the basis that it is not in accordance with the purpose of the provision.

24    The second contention advanced by the Minister should be rejected. A decision of the kind made by the AAT would not immunise the AAT’s decisions from the exercise of power because the delegate of the Minister to whom the decision is remitted could, in accordance with the AAT’s direction, decide not to exercise the power to cancel the visa, which would trigger s 501A(1)(a) and allow the Minister to exercise the power given to the Minister under s 501A. For that reason the Minister’s second contention should be rejected.

25    However, I think the Minister’s first contention should be accepted.

26    In my opinion the AAT has, by exercising the power under s 43(1)(c)(ii) to remit the matter to the delegate of the Minister, effectively made a decision not to exercise the power conferred by s 501(2) to cancel the applicant’s visa. The decision to remit carries with it the decision not to exercise the power. The AAT could on its reasons only have made the order to remit with the direction it gave by deciding for itself not to exercise the power. By remitting it has decided not to exercise the power to cancel the applicant’s visa. Notwithstanding that the delegate of the Minister has not yet complied with the AAT’s direction, s 501A has been engaged and was engaged at the time that the AAT made the decision. I think that construction is not inconsistent with Lehane J’s reasons for decision in Lam v Minister for Immigration and Multicultural Affairs [2000] FCA 1226; (2000) 104 FCR 454. Accordingly, the Minister’s decision is not premature and is not made without jurisdiction.

facts, procedural history and submissions

27    In this case the Minister suspected that the applicant did not pass the character test, and the applicant did not satisfy the Minister that he passes the character test, and the Minister was satisfied that it was in the national interest to cancel the applicant’s visa.

28    The applicant complains on this application that the Minister failed to provide the applicant with procedural fairness in deciding that the cancellation of the applicant’s visa was in the national interest. Thus it is claimed that the decision was made in circumstances of jurisdictional error, and that the constitutional writs should issue.

29    The applicant is a New Zealand citizen who entered Australia on 18 May 1993 at the age of 14. He has lived in Australia since that time.

30    The applicant has been convicted of a number of criminal offences, but relevantly for the purpose of this application he was convicted of manslaughter on 5 October 2000 in the Supreme Court of South Australia after being found guilty by a jury. At the time he committed this offence he was 20 years of age. He was sentenced to 15 years’ imprisonment with a non-parole period of 11 years.

31    The short circumstances of the offence were that the applicant, in the company of two other persons, invaded a pool hall at about 4.15am on 10 January 1999. At the time the principal victim (a man), his wife, and 15 year old son, were cleaning the pool hall. The applicant was carrying a sawn-off shotgun with which he struck the victim severely on the head. He hit the victim so severely that the shotgun lost its butt. The applicant also hit the victim’s wife, and she sustained injuries. The applicant handed the shotgun to one of his accomplices whilst he searched the victim’s car for money. When he returned to the pool hall the applicant’s accomplice shot the victim dead in front of the victim’s wife and 15 year old son.

32    The applicant is still in prison. If the Minister’s decision is to stand the applicant when paroled would be required to leave the country and return to New Zealand.

33    As I have said, on 18 March 2011 the Minister’s delegate decided to cancel the applicant’s visa pursuant to s 501(2) of the Act. The Minister’s delegate was satisfied that the applicant did not pass the character test. The Minister did not seek to invoke the powers given to the Minister under s 501(2) or (3). The applicant sought a merits review of the delegate’s decision in the AAT. On 15 June 2011 the AAT made a decision to set aside the delegate’s decision and remit the matter to the delegate with a direction that the discretion under s 501(2) of the Act not be exercised. In other words, the delegate was instructed not to exercise the delegate’s discretion to cancel the applicant’s visa.

34    The Minister did not seek judicial review of the AAT’s decision, but instead exercised his power under s 501A(2) to cancel the applicant’s visa on the ground that the cancellation was in the national interest.

35    On the hearing of this application the applicant sought to amend the application for judicial review so as to delete some grounds and to include further grounds. There being no objection leave to amend was granted.

36    The applicant has identified three matters for decision on this application:

1.    First, whether, as a matter of the requirements of natural justice, the respondent was required to identify to the applicant the relevant factor or factors that were said to satisfy the respondent that the cancellation of the visa would be in “the national interest” pursuant to para. 501A(2)(e) of the Act?

2.    Secondly, whether the respondent, in deciding to exercise the power to cancel the visa, properly construed the meaning of “the national interest” in para. 501A(2)(e) of the Act?

3.    Thirdly, whether the respondent, in deciding to exercise the power to cancel the visa, did not take into account an accurate statement of the applicant’s criminal record?

37    As has already been noted, the Minister’s decision under s 501A(2) involved different considerations to those which informed the delegate’s decision and the AAT’s decision. In the case of the delegate and the AAT the question, if the delegate was satisfied the applicant could not pass the character test, was whether the delegate ought to exercise the delegate’s discretion to, or not to, cancel the applicant’s visa. In the case of the Minister the question was, if the Minister was satisfied that the applicant could not pass the character test, whether the Minister ought to exercise the Minister’s discretion to cancel the visa “in the national interest”.

38    It was submitted by the applicant that the Minister became aware of the applicant’s circumstances and came to exercise the Minister’s power under s 501A(2) of the Act upon a report to the Minister under the Character Program Management Case Escalation Register, which stated the reason for referral to the Minister:

AAT has set aside the cancellation of client’s subclass 444 visa. Enforcement and Citizenship Litigation are very disappointed with the decision, particularly in relation to how the AAT member has dismissed our expert Forensic Psychiatrist’s evidence that client suffers from an antisocial personality disorder and posed a risk to the Australian community.

39    The report contained a short history of the applicant’s criminal history and is endorsed “Refer to me for consideration. CB”, which it was agreed was the Minister’s endorsement. The Minister read the document, which he endorsed prior to exercising his power under s 501A(2), but there is no evidence that that was the only information that he had when he asked that the matter be referred to him for his consideration. In any event, the decision which is sought to be reviewed is not the decision to set in train the procedure for making a decision under s 501A(2), but the decision which was made under s 501A(2). In those circumstances nothing more need be said about the reasons why the Minister came to exercise the power under s 501A(2).

40    On 8 July 2011 notice of the Minister’s intention to consider cancelling the applicant’s visa under s 501A(2) of the Act was given to the applicant. The notice was sent in circumstances where the applicant knew that a delegate of the Minister had decided under s 501(2) to cancel the applicant’s visa, and that the AAT had reviewed that decision and decided that the matter should be remitted to the delegate with an instruction that the delegate not exercise the delegate’s discretion to cancel the visa. The delegate’s decision to cancel and the AAT’s decision to remit were both made after they had considered whether the applicant did or did not pass the character test by reason of his substantial criminal record.

41    The notice identified the relevant legislation, the character test and the consequence of not passing the character test. The notice also identified the information that the Minister would take into account in considering whether to exercise the Minister’s discretion to cancel the applicant’s visa under s 501A(2) of the Act.

42    The information which was identified all related to the applicant’s criminal record and included information provided by the applicant to the Minister’s delegate when the Minister’s delegate considered whether the delegate should exercise the delegate’s discretion to cancel the applicant’s visa, as well as information provided to the AAT when the AAT considered that decision on review.

43    In that part of the document headed “Your opportunity to comment” the applicant was advised:

You have the opportunity to submit any information or material to satisfy the Minister that you pass the character test.

You should note that under subsection 501A(2) of the Act, the Minister will take into consideration the issue of “national interest”. Therefore, you may wish to address this issue too.

You also have the opportunity to comment on the information that will be considered by the Minister and to submit additional information, if you wish.

Further, you have an opportunity to provide reasons or information in relation to why your visa should not be cancelled, even if you are found not to pass the character test. In this regard, it is important to read the enclosed Ministerial Direction carefully and address each factor that you feel applies to you or is relevant to your circumstances. You can also provide any other information that you feel the Minister ought to be aware of and take into account.

A courtesy copy of this Notice has been sent to Ms Sally Mays, who has assisted you previously, pending her advice as to whether she will act as your representative in this matter.

44    The applicant was further advised that he was not obliged to respond to the notice, but that it was in his interests to provide any information that the Department might not have, and any statements which might support the applicant’s case.

45    The applicant responded to the notice by providing some additional information, which was subsequently brought to the attention of the Minister.

46    On 12 September 2011, which is the date upon which the Minister made the impugned decision, the Minister was provided with a submission prepared by officers of his department. The submission identified the applicant’s conviction history, and in respect of the conviction for manslaughter attached the sentencing remarks of Matheson J delivered on 20 October 2000.

47    There can be no doubt, and it has never been contended otherwise, that the applicant cannot pass the character test. A conviction for manslaughter and a sentence of imprisonment for 15 years brings the applicant within s 501(7) and makes the applicant a person liable to have his visa cancelled pursuant to s 501.

48    Nevertheless the Departmental submission to the Minister contained the relevant information to establish that the applicant could not pass the character test. Such information was necessary so that the Minister could satisfy himself of the matters in s 501A(2)(c) and (d).

49    The submission addressed the further criterion (national interest) in s 501A(2).

50    The submission proceeded:

16.    As mentioned above, you may only set aside the decision of a delegate or the Administrative Appeals Tribunal not to cancel a visa (the original decision) and then cancel the visa under s501A(2) if you are also satisfied that the cancellation is in the national interest: s501A(2)(e).

17.    The terms of s501A(2) make it clear that the national interest considerations are separate and distinct from the question of whether or not a person passes the character test. ‘National interest’ is not defined for the purposes of s501A. Generally, courts have been reluctant to attempt to define the meaning of national interest in statutory contexts, but the national interest has been determined to be a different concept to the public interest.

18.    Mr MAURANGI’s legal representative contends that for it to be in the national interest to cancel a visa, there must be something more than the original commission of the crime that causes a person to fail the character test …

…

21.    In Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220, at [86], the Full Federal Court said:

‘the Minister in considering the national interest under s 501A(2) may properly have regard to the circumstances which underpin the failure to satisfy him that an applicant for a visa passes the character test. There may be circumstances in which the seriousness of a person’s criminal history will be sufficient to satisfy the Minister that the refusal of a visa is in the national interest’.

22.    In Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400, at 409, the Full Court referred to the seriousness of the visa holder’s crimes in that case and said:

‘It is the seriousness of that conduct which has to be assessed in the national interest. Obviously enough, the national interest dictates that people who engage in sufficiently serious crime should not have the benefits of an Australian visa.’

23.    In Re Patterson; Ex parte Taylor (2001) 182 ALR 657, Gaudron J said, after referring to the decision in Gunner, at 676:

‘…crimes of which a person has been convicted may be of such seriousness or the circumstances in which they were committed may be of such a nature as to found the satisfaction that it is in the national interest that his or her visa be cancelled’.

24.    In considering whether it is in the national interest to cancel Mr MAURANGI’s visa, you may wish to consider the nature and seriousness of Mr MAURANGI’s convictions (which include Manslaughter … and Common Assault on Person Other Than Family Member …).

25.    You may also wish to consider the particularly abhorrent nature of Mr MAURANGI’s crime of manslaughter, wherein the victim was killed in the presence of his wife and 15 year-old son, described by Justice Matheson as “a most appalling experience” for them …

26.    While you may derive further support for a view that cancellation of Mr MAURANGI’s visa is in the national interest if you were to find a significant risk of recidivism and/or ongoing threat that he may pose to the community as a whole, you may still find that it is in the national interest to cancel his visa even if you accept the conclusion of the Tribunal member who considered that “the overall risk Mr Maurangi poses to the Australian community is low” …

27.    Considering all of the above, it is open to you to be satisfied that it is in the national interest that the visa held by Mr MAURANGI be cancelled under s501A(2).

51    The submission directed the Minister’s attention to Direction 41 which had been issued by the previous Minister to guide delegates and the AAT in the exercise of the discretion whether to refuse or cancel a visa under s 501 on the ground that the visa holder does not pass the character test. The submission advised the Minister that although the direction did not apply to him it was open to him to be guided by the factors set out in the Direction in exercising his discretion.

52    The submission identified a number of matters including the applicant’s criminal history.

the minister’s reasons

53    The Minister gave reasons for his decision. First, he found that the applicant did not pass the character test, and in particular he found that the applicant came within s 501(7)(c) of the Act. He next addressed the national interest, and said:

6.    I am satisfied that it is in the national interest that the visa held by Mr MAURANGI be cancelled under s501A(2). In making this determination I gave primary consideration to a number of factors, including the seriousness and nature of the crime committed by Mr MAURANGI, shown above.

7.    I took into account that Mr MAURANGI’s manslaughter offence is of a particularly heinous nature, in that it involved the shooting death of a man in front of his wife and 15 year old son. I further took into account the very heavy and ongoing emotional effects of the victim’s death on his wife and son and the broadly distressing impact on the community at large.

8.    While acknowledging assessments by prison authorities of Mr MAURANGI’s psychological condition and general attitude and behaviour that have concluded that he presents a low risk of further criminal offending, I am conscious that his ability to resist alcohol and drugs, with an associated increase in the risk of him reoffending, has not yet been tested in the community. I have also borne in mind that the consequences of any further offending of a similar nature to that he has already committed would be extremely grave.

9.    Having regard to these considerations, I was satisfied that the cancellation of Mr MAURANGI’s visa is in the national interest.

54    He then separately addressed the question of discretion, and he said:

10.    Having found that Mr MAURANGI does not pass the character test and that it would be in the national interest to cancel his visa, I carefully assessed all of the information set out in the Issues Paper and considered whether to exercise my discretion to set aside the Tribunal’s decision and to cancel Mr MAURANGI’s visa. In doing so, I had regard to the considerations in Ministerial Direction No. 41 – Visa refusal and cancellation under s501 (“the Direction”) – in so far as I believed them relevant to the exercising of my powers under s501A(2). While the Direction does not apply to the exercise of my powers under s501A and in any event does not bind me, I considered that the matters set out in Part B of the Direction provide useful guidance for the exercise of my discretion under s501A(2).

11.    I 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 person commenced living in Australia, the length of time that the person has lived in Australia and any relevant international obligations.

55    He addressed the protection of the Australian community, the applicant’s age when he entered Australia, the applicant’s length of residence in Australia, Australia’s international obligations, and other non-primary considerations which included the applicant’s family.

56    He said in conclusion:

29.    I have considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act 1958, (2) whether cancelling Mr MAURANGI’s visa was in the national interest (3) Ministerial Direction 41 under s499 of that Act, as I considered appropriate and (4) all other evidence available to me, including evidence provided by, or on behalf of Mr MAURANGI.

30.    In reaching my decision, I concluded that it was in the national interest to cancel Mr MAURANGI’s visa. In this context I again considered the nature and seriousness of his offending and I found that the 15 year sentence imposed reflects the seriousness of the offence. The difficulty in establishing his risk of violent reoffending leads me to find I cannot be confident that he will never re-offend and, given the serious nature of his past offending, I concluded that even a relatively small risk of him re-offending presented an unacceptable risk of harm to the Australian community. I find that the protection of the Australian community outweighs Mr MAURANGI’s family and other links with Australia, the early age at which he commenced residence in Australia and any other countervailing factors identified above.

31.    Having given full consideration to all of these matters, I decided to exercise my discretion to set aside the Tribunal’s decision of 15 June 2011 and to cancel Mr MAURANGI’s Class TY, Subclass 444 Special Category (Temporary) visa under subsection 501A(2).

wAS the applicant denied procedural fairness?

57    The question on this application is whether the Minister failed to accord the applicant procedural fairness in failing to identify to the applicant the relevant factor or factors that might satisfy the Minister that the cancellation of the visa would be in “the national interest” pursuant to s 501A(2)(e) of the Act. Subsidiary questions arise as to whether the Minister in deciding to exercise the power to cancel the visa properly construed the meaning of “the national interest” in that subsection, and whether he failed to take into account an accurate statement of the applicant’s criminal record.

58    The first issue can be more precisely identified, and that is whether the notice that was given to the applicant on 8 July 2011 made sufficiently clear to the applicant the matters that the Minister would address in considering the issue of the national interest.

59    In my opinion the notice that was given to the applicant adequately identified the issues that the Minister needed to address in considering whether to exercise the power under s 501A(2) of the Act. The applicant was made aware that his substantial criminal record would be the matter considered by the Minister in determining whether the applicant’s visa should be cancelled.

60    The applicant was aware that his substantial criminal record was such that he could not pass the character test, and that he could not satisfy the Minister that he could pass the character test. He was made aware in the notice that if that were the case, which clearly it was, the matter that the Minister would consider was whether the Minister was satisfied that the cancellation of the applicant’s visa was in the national interest. In my opinion the applicant was made aware of the matters under consideration.

61    The applicant made detailed submissions in response to the notice of intention to cancel the applicant’s visa, which the Minister said he had carefully assessed in considering whether to exercise his discretion to set aside the Tribunal’s decision and to cancel the applicant’s visa. It was not suggested and there is nothing to suggest that the Minister did not consider these submissions.

62    Accordingly, the first contention fails.

DID the minister misconstrue “IN the national interest”?

63    The applicant contended as one of the subsidiary questions that the Minister failed to properly construe the meaning of “the national interest” in s 501A(2)(e) of the Act.

64    It was contended that the Minister did not have regard to any issues apart from those issues that are relevant in determining whether a visa holder or visa applicant passes the character test. In those circumstances, it was contended that the Minister failed to properly construe the test for national interest.

65    In my opinion that contention must be rejected. It does not follow that simply because the Minister relied upon the fact that a visa holder cannot pass the character test because of the visa holder’s criminal record and decided that the visa holder’s criminal record was the ground for finding that the cancellation was in the national interest meant that the Minister proceeded in jurisdictional error.

66    Section 501A is only engaged where, as I have said, either the delegate of the Minister or the AAT has failed to exercise the power under s 501(2) to cancel a visa that has been granted to a person because the person does not pass the character test.

67     Once s 501A is engaged the Minister must proceed in accordance with s 501A(2). That subsection requires the Minister, if the Minister has the suspicion in s 501A(2)(c), to satisfy himself or herself that the person does not pass the character test. The Minister may be satisfied of that fact if the person has a substantial criminal record. However, there is a further step, and that is that the Minister must then decide whether the refusal or cancellation of the visa is in the national interest. The Minister may rely upon the person’s substantial criminal record in deciding that question, or he or she may rely upon that fact and other relevant facts, but that is a matter for the Minister. So long as the Minister addresses the question whether the refusal or cancellation of a visa of a person who does not satisfy the Minister that the person passes the character test is in the national interest the Minister will have acted within jurisdiction.

68    In Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220; (2002) 118 FCR 326 the Full Court said at [86]:

[86]    …There may be circumstances in which the seriousness of a person’s criminal history will be sufficient to satisfy the Minister that the refusal of a visa is in the national interest. In Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 409 the Full Court referred to the seriousness of the visa holder’s crimes in that case and said:

“It is the seriousness of that conduct which has to be assessed in the national interest. Obviously enough, the national interest dictates that people who engage in sufficiently serious crime should not have the benefits of an Australian visa.”

While, as Gaudron J observed in Re Patterson; Ex parte Taylor at 418; 675 this does not mean that convictions which result in a person failing the character test are themselves sufficient to entitle the Minister to determine that it is in the national interest that a visa be cancelled, convictions of a sufficiently serious character can lead to that conclusion.

69    Counsel for the applicant placed some emphasis on the words “sufficiently serious”, and argued that notwithstanding the very serious nature of the applicant’s crime it was not “sufficiently serious” to justify the Minister exercising his discretion to cancel the applicant’s visa. That contention may be answered in two ways. First, the Full Court did not intend by referring to “sufficiently serious crime” to be formulating a test for when the Minister might be satisfied that it is in the national interest to refuse or cancel a visa. The test for refusal or cancellation is if the Minister thinks it to be necessary in the national interest. Secondly, it is clear from the comments of the Full Court in Madafferi and in Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 409 that the seriousness of a person’s criminal history may be sufficient on its own to satisfy the Minister that it is in the national interest to cancel the person’s visa. In my view it is for the Minister to determine when a person’s criminal history is such that it is in the national interest to cancel that person’s visa, providing of course the Minister exercises the discretion reasonably.

70    The Court is not entitled to substitute its views for the Minister’s. The decision is to be made by the Executive. It has the responsibility, including the political responsibility, for deciding what is in the national interest. In Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 Kirby J said at 502-503:

However broad may be the jurisdiction conferred by the constitutional writs, they do not permit a court to substitute for the satisfaction of the Minister, provided by the Act of Parliament, the satisfaction of judges who are not accountable to the Parliament or the people in the same way as the Minister.

(Footnote omitted)

Similarly, in Madafferi the Full Court said at [89]:

[89]    … The question of what is or is not in the national interest is an evaluative one and is entrusted by the legislature to the Minister to determine according to his satisfaction which must nevertheless be obtained reasonably.

71    In the present case the Minister was entitled to form the view that the applicant’s criminal history was such that it was in the national interest to cancel the applicant’s visa. There is nothing to suggest that he acted unreasonably.

72    Counsel for the applicant also argued that the Minister fell into error by failing to consider whether the applicant was likely to re-offend. That submission appears to be based on a finding by the AAT that “…the overall risk Mr Maurangi poses to the Australian community is low”: at [46]. I agree with the applicant’s submission that the risk of an applicant’s recidivism is a relevant factor that the Minister may consider when determining whether it is in the national interest to cancel a visa under s 501A. However, as I have already said, the Minister may come to the conclusion that the seriousness of the offence is on its own sufficient to justify cancelling a visa in the national interest.

73    In any event, in this case the Minister has considered the risk of the applicant re-offending. In particular, he stated at [8] of his reasons that:

8.    While acknowledging assessments by prison authorities of Mr MAURANGI’s psychological condition and general attitude and behaviour that have concluded that he presents a low risk of further criminal offending, I am conscious that his ability to resist alcohol and drugs, with an associated increase in the risk of him reoffending, has not yet been tested in the community. I have also borne in mind that the consequences of any further offending of a similar nature to that he has already committed would be extremely grave.

He also stated at [16]-[20] of his reasons:

16.    I have noted that Mr MAURANGI had a criminal history of less than three years prior to the very serious offence set out above, though he had been convicted of a prior violent offence of Common Assault. I further noted that Mr MAURANGI has two convictions for breaches of judicial orders.

17.    I have taken into account that the court accepted that Mr MAURANGI had drug and alcohol problems at the time of his offending behaviour and that professional opinion accepts that Mr MAURANGI has been in remission from dependence on these substances while in prison.

18.    I have noted that Mr MAURANGI’s record during his incarceration has generally been a good one, with the exception of two incidents of consumption of home brew. I also noted that Mr MAURANGI did not initially take responsibility for his criminal offences, but that more recently he has accepted responsibility and his behaviour was considered to be good. I further noted that his work history in prison has been commendable and that he progressed to an ability to work unsupervised.

19.    I have taken into account that Mr MAURANGI was assessed by the prison as a low risk of violent reoffending and hence found unsuitable for participation in a Violent Prevention Program. Conversely, I have also taken into consideration the professional opinion of a forensic psychiatrist who considers that Mr MAURANGI would pose a risk of harm to the Australian community.

20.    I have taken into account the support offered to Mr MAURANGI by his immediate family in Australia. I note that Mr MAURANGI prefers to reside in a rural location rather than reside with his siblings when released.

74    Ultimately, the Minister concluded at [30] that:

30.    …The difficulty in establishing his risk of violent reoffending leads me to find I cannot be confident that he will never re-offend and, given the serious nature of his past offending, I concluded that even a relatively small risk of him re-offending presented an unacceptable risk of harm to the Australian community.

75    In my view the Minister was entitled to reach the conclusion at which he arrived because he was entitled to form the view that the serious nature of the applicant’s criminal history was sufficient on its own to justify cancelling the applicant’s visa. But as I have said, the Minister considered the question of recidivism.

76    Finally, I reject the applicant’s submission that the Minister, in exercising his discretion to cancel the applicant’s visa, was unduly influenced by the Department’s complaint that the AAT failed to consider the expert evidence adduced on behalf of the Minister at the merits review hearing. There is nothing in his reasons or otherwise that indicates that he was influenced by the Department’s view that the AAT had failed to take account of relevant evidence when exercising his discretion to cancel the applicant’s visa. The Minister’s reasons disclose that he carefully considered the applicant’s background and personal circumstances; the circumstances and nature of his criminal history; his behaviour in prison; and the material relevant to his risk of re-offending. It was appropriate that he consider these matters, and there is nothing to suggest that he was influenced by any other matter when he made his decision.

77    The first subsidiary argument is rejected.

DID THE MINISTER MISAPPREHEND THE APPLICANT’S CRIMINAL RECORD?

78    The last submission put by the applicant was that the Minister did not take into account an accurate statement of the applicant’s criminal record.

79    The Minister said in his reasons that the crime of manslaughter was committed against a “vulnerable victim and was thus also abhorrent to the Australian community, according to the Direction”. It was contended by the applicant that the deceased was not a vulnerable victim as that term is used in Direction 41, and that therefore the Minister took into account an irrelevant matter, or failed to take into account a relevant matter, namely an accurate statement of the applicant’s criminal record.

80    The Minister was not bound by Directive 41. However, in any event the description of the victim as a “vulnerable victim” was not inappropriate having regard to the circumstances of the crime. The deceased had been struck and injured, and was prone on the floor when he was shot dead. He was shot in the presence of his 15 year old son. The deceased was disabled and the deceased’s son was a minor. In those circumstances the Minister was not wrong to describe the crime in the manner that he did.

81    It is clear from the Minister’s reasons that he did not misconceive the nature of the applicant’s criminal record. Accordingly, no error was committed by the Minister.

82    The second subsidiary argument is rejected.

83    In my opinion the application must be dismissed and the applicant must pay the Minister’s costs.

Associate:

Dated:    19 January 2012