FEDERAL COURT OF AUSTRALIA

Nweke v Minister for Immigration and Citizenship [2012] FCA 266

THE COURT ORDERS THAT:

1.    The decision of the Minister made on 5 September 2011 to cancel the applicant’s visa under s 501A(2) of the Migration Act 1958 (Cth) be quashed.

2.    The respondent pay the applicant’s costs of the application, as agreed or taxed.

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

REASONS FOR JUDGMENT

THE APPLICATION

1        These reasons for judgment concern an application to set aside a decision of the Minister for Immigration and Citizenship (the Minister) for jurisdictional error.

2        The Minister decided to cancel the applicant’s visa under s 501A(2) of the Migration Act 1958 (Cth) (the Migration Act). Section 501A(2) applies to an “original decision” being a decision of either the Minister’s delegate or the Administrative Appeals Tribunal not to cancel a person’s visa in certain circumstances. Section 501A(2) is in these terms:

(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.

3        By s 501G(1) of the Migration Act the Minister must give the applicant notice of the decision including the reasons for the decision (s 501G(1)(e)).

4        Under s 476A(1)(c) of the Migration Act this Court has jurisdiction in relation to the decision. As a privative clause decision or purported privative clause decision under s 474 of the Migration Act the decision is amenable to judicial review only on the ground of jurisdictional error.

5        The applicant challenged the decision on three grounds said to constitute jurisdictional error: – (i) failure to provide procedural fairness, (ii) failure to take account of relevant material, and (iii) failure to perform the required statutory duty or applying the wrong test.

6        I have concluded that the first of these grounds must be upheld and the Minister’s decision is thus vitiated for jurisdictional error. My reasons are as follows.

FACTS

7        Most of the relevant facts are identified in the Minister’s notice of intention to consider cancellation of the applicant’s visa dated 14 July 2011. The notice included information in these terms:

NOTICE OF INTENTION TO CONSIDER CANCELLATION OF YOUR VISA UNDER SUBSECTION 501A(2) OF THE MIGRATION ACT 1958

On 21 April 2011, a delegate of the Minister for Immigration and Citizenship decided to cancel your visa under subsection 501(2) of the Migration Act 1958 (“the Act”). This decision was set aside by the Administrative Appeals Tribunal (AAT) on 12 July 2011.

As a result of the AAT’s decision, you continue to hold a Class BS Subclass 801 Spouse visa (“your visa”) granted on 11 April 2003.

The Minister for Immigration and Citizenship intends to consider whether to set aside the decision of the Administrative Appeals Tribunal and to cancel your visa under subsection 501A(2) of the Act.

Migration law and visa cancellation on character grounds

Under subsection 501A(2) of the Act, the Minister may set aside a decision of the Administrative Appeals Tribunal not to exercise the power under subsection 501(2) of the Act to cancel a visa that has been granted to a person, and cancel that visa if:

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

    The person does not satisfy the Minister that the person passes the character test; and

    The Minister is satisfied that the cancellation is in the national interest.

The power to cancel a visa under subsection 501A(2) of the Act may only be exercised by the Minister personally.

…

What is the character test?

…

What if you do not pass the character test?

If the Minister reasonably suspects that you do not pass the character test, and you do not satisfy the Minister that you pass the character test (see ‘Your opportunity to comment’, below), the Minister will consider whether the cancellation of your visa is in the national interest.

If the Minister is satisfied that the cancellation of your visa is in the national interest, he will then consider whether to exercise the discretion in subsection 501A(2) of the Act to cancel your visa. The Minister will weigh up all relevant available information before making that decision.

In considering whether to exercise the discretion to cancel your visa under subsection 501A(2) of the Act, the Minister may have regard to, but is not bound by, the factors in the directions given by him under section 499 of the Act to section 501 decision-makers. Those directions are currently contained in Direction No. 41 – Visa Refusal and Cancellation under s501 (“the Direction”).

A copy of the Direction is enclosed for your information.

Information to be considered

Set out below is information that the Department currently holds that the Minister will take into account in considering whether to exercise the discretion to cancel your visa under subsection 501A(2) of the Act.

…

Your opportunity to comment

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 will 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.

8        On 5 September 2011 the Minister decided to cancel the applicant’s visa. The Minister’s decision is recorded as follows:

VISA CANCELLATION UNDER SUBSECTION 501A(2) OF THE MIGRATION ACT 1958 – DECISION BY THE MINISTER FOR IMMIGRATION AND CITIZENSHIP

I have considered all relevant matters including (1) an assessment of the Character Test as defined by subsection 501(6) of the Migration Act 1958 (2) Ministerial Direction 41 [Direction 41 – Visa Refusal and Cancellation under s 501 (Direction 41)] made under section 499 of that Act, as I considered appropriate, and (3) all other evidence available to me, including evidence provided by, on behalf of, or in relation to [the applicant] in connection with the exercise of my power in s501A(2).

…

(d) I reasonably suspect that [the applicant] does not pass the character test and [the applicant] has not satisfied me that he passes the character test and I am satisfied that cancellation of his visa is in the national interest. I have decided to exercise my discretion under s501A(2) to set aside the decision of the Tribunal not to cancel [the applicant’s] visa. I hereby cancel [the applicant’s] Class BS Subclass 801 Spouse visa.

9        The Minister provided a statement of reasons for his decision, relevant parts of which are reproduced below.

STATEMENT OF REASONS FOR CANCELLATION OF VISA UNDER S501A(2) OF THE MIGRATION ACT 1958

    …

CHARACTER TEST

4.    On 9 March 2007, [the applicant] was convicted in the District Court of New South Wales of Aiding and Abetting the Importation of a Trafficable Quantity of Cocaine and sentenced to ten years imprisonment.

5.    As a result of this sentence of imprisonment, [the applicant] has a substantial criminal record. I find that he does not pass the character test by virtue of s501(6)(a) with reference to s501(7)(c) of the Act and that he has not satisfied me that he passes the character test.

NATIONAL INTEREST

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

7.    I took into account that [the applicant] played an authoritative role in this offence which enabled the importation of a trafficable quantity of a prohibited drug. I considered that his actions had the potential to cause significant harm to the Australian community, noting the costs incurred by society due to illicit drug use. I considered that the seriousness of the offence and the significant role played by [the applicant] was reflected in the ten year sentence of imprisonment imposed for the offence.

8.    Having regard to these considerations, I concluded that the cancellation of [the applicant’s] visa is in the national interest.

DISCRETION

9.    Having found that [the applicant] 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 [the applicant] visa [sic]. 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).

10.    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.

Protection of Australian Community

Seriousness and nature of conduct

…

Risk that the conduct may be repeated

…

Age on commencing residence in Australia

…

Length of residence in Australia

…

International Obligations

Best Interests of the Child

17.    I gave primary consideration to the best interests of any children who are less than 18 years of age and whose best interests may be significantly affected by cancellation of [the applicant’s] visa. [The applicant] has two sons (C and D) from his former relationship with Ms G and one son (J) from a more recent relationship with Ms L.

18.    I accepted the available information that indicated that [the applicant] has close ties to his three children and is committed to providing them with emotional and financial support. I have considered that [the applicant’s] children may suffer emotional and financial hardship if his visa is cancelled.

Other International Obligations

19.    I noted that [the applicant] applied for a Protection visa in October 2000 and that this application was refused on 28 February 2001.

20.    I noted that an International Obligations and Humanitarian Concerns Assessment (IOHCA) was obtained following the AAT decision to set aside the Delegate’s decision to cancel [the applicant’s] visa. I noted that the assessment concluded that [the applicant’s] claims of persecution on the basis of his religious beliefs and claims of degradation as a result of his criminal convictions are unfounded. As such, I have considered that he is not t genuine risk of harm if he was returned to Nigeria.

Other (non-primary) Considerations

21.    I noted that [the applicant] claims that he has returned his relationship with Ms G, the mother of his two children, C and D. I also accepted that he and his more recent partner, Ms L are committed to raising their son, J.

22.    I considered that both Ms G and Ms L may experience hardship if they became solely responsible for the welfare of their children.

23.    I noted that [the applicant] has family in Nigeria.

24.    I considered that [the applicant] has been diagnosed with inactive Hepatitis B and has severely diminished vision in one eye due to an eye injury which may require further medical treatment.

CONCLUSION

25.    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 [the applicant’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 [the applicant].

26.    Having concluded that the cancellation of his visa is in the national interest, I considered whether to exercise my discretion under s501A(2) to cancel his visa. In this context I again considered the nature and seriousness of his offending. I noted that, while he has committed only one criminal offence, this offence is very serious. I found that the ten year sentence imposed reflects the seriousness of the offence and the damage done to the Australian community by drug trafficking. I also noted that [the applicant] arrived in Australia as an adult and spent a relatively short period of three years in Australia before committing this serious offence. While I noted [the applicant’s] progress in jail and his prospects of rehabilitation, I found I could not be satisfied that there was no risk that he would re-offend. I considered the nature of the relationships between [the applicant] and his three young children. I noted that he has been absent for much of their lives because he has been in custody since 2005, but accepted that he has a close relationship with each of his children and I accepted that it may be in their best interests for [the applicant’s] visa not to be cancelled. However, 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 found that this risk outweighed the best interests of his three children and any other countervailing considerations.

27.    Having given full consideration to all of these mattes, I decided to exercise my discretion to set aside the Tribunal’s decision of 12 July 2011 and to cancel [the applicant’s] Class BS Subclass 801 Spouse visa under subsection 501A(2).

DISCUSSION

10        In Minister of Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20 (Teoh) the High Court considered the effect of the ratification by Australia and entry into force of the United Nations Convention on the Rights of the Child (the Convention), in particular, Article 3 which provides that:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

11        At 291-292 of Teoh Mason CJ and Deane J held that Article 3 involves a “positive statement” which “is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention and treat the best interests of children as 'a primary consideration'… if a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course”.

12        The Full Court of the Federal Court applied this reasoning in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133; [2001] FCA 568 (Wan). The Court (Branson, North and Stone JJ) referred to the decision of another Full Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 (Vaitaiki) in which Burchett J had observed (at 618) that “the question which the Tribunal was required to answer was what the best interest of the children required it to decide with respect to the proposed deportation of their father, not what the children should do given that their father would be deported”. In Wan at [26] Branson, North and Stone JJ said that:

Of particular significance is the failure of the Tribunal to identify anywhere in its written reasons for decision what the best interests of the children indicated that it should decide with respect to Mr Wan's application for a visa. That this is the starting point for the Tribunal's consideration follows from Teoh and from Vaitaiki.

13        They continued at [28]:

In giving consideration, as it had done in Vaitaiki, to what the children might do if their father were required to cease living in Australia, the Tribunal was not undertaking an inherently inappropriate task. Such consideration was capable of assisting the Tribunal in determining whether the strength of any other consideration or considerations outweighed the best interests of the children. However, it was not a useful thing to do without the Tribunal having first identified what the best interests of the children indicated should be decided with respect to Mr Wan's visa application.

14        They made the same point at [31] in these terms:

…the Tribunal finds that matters touching on the interests of the children do not "outweigh the strength of community expectations". That is, the Tribunal does not in fact treat the best interests of the children as a primary consideration but rather treats considerations touching on community expectations as considerations which should prevail unless "outweighed" by other considerations. As Mason CJ and Deane JJ pointed out in Teoh at 292:

"A decision-maker with an eye to the principle enshrined in the Convention would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it."

15        And at [32] Branson, North and Stone JJ said the Tribunal:

was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.

16        Although Vaitaiki and Wan both concerned decisions of a tribunal they applied Teoh, which concerned a decision of the Minister. Accordingly, consistent with these decisions (which the Minister accepted I would apply whilst formally submitting that Teoh was wrongly decided), I consider that the applicant had a legitimate expectation that the Minister would treat the best interests of his children as a primary consideration in deciding whether or not to cancel his visa. Failure to do so would be in breach of the requirements of procedural fairness.

17        The Minister submitted that he had treated the best interests of the children as a primary consideration. He said he had done so at para 17 of the statement of reasons. The Minister submitted that consideration of the balance of the statement of reasons supports the inference that the Minister, in effect, assumed that the best interests of the applicant’s children would be for the applicant’s visa not to be cancelled. The Minister then found that another consideration, the risk of harm to the Australian community, outweighed the best interests of the applicant’s children. According to the submissions for the Minister, the Minister’s willingness to assume that the best interests of the applicant’s children was for the applicant’s visa not to be cancelled meant that it was unnecessary for the Minister to express any firm findings about the nature and extent of their interests.

18        I do not accept these submissions. Consideration of the Minister’s decision and statement of reasons as a whole supports the inference that the Minister did not in fact treat the best interests of the applicant’s children as a primary consideration in deciding whether or not to cancel the applicant’s visa. First, in the decision itself there is no mention of the interests of the applicant’s children although other relevant findings and considerations are mentioned. Second, in the summary at paras 9 and 10 of the statement of reasons the Minister refers to the fact that he gave “primary consideration to the protection of the Australian community…”. There is no mention of the interests of the applicant’s children in those paragraphs other than perhaps obliquely under the general rubric of “any relevant international obligations”. Third, when dealing with the “best interests of the child” the Minister says he gave “primary consideration to the best interests of any children who are less than 18 years of age and whose best interests may be significantly affected by cancellation of [the applicant’s] visa”. However, on that and each subsequent occasion when dealing with the applicant’s children, the Minister’s reasons remain at the level of mere hypothesis about their best interests. Hence, the Minister accepted that their interests “may be significantly affected by cancellation of [the applicant’s] visa” (at para 17). He also accepted at para 18 that the children “may suffer emotional and financial hardship if [the applicant’s] visa is cancelled”. At para 22 he accepted that the mothers of the children “may experience hardship if they became solely responsible for the welfare of their children”. At para 26 he accepted that “it may be in [the children’s] best interests for [the applicant’s] visa not to be cancelled”.

19        Nothing in the language of the Minister’s decision or reasons suggests the Minister assumed that the children’s best interests were for their father’s visa not to be cancelled and that the Minister weighed the risk of harm to the Australian community from the applicant’s possible re-offending against those interests. To the contrary, the Minister’s reasons as a whole indicate that the Minister either found or assumed (it is not clear which) only that it may be in the children’s best interests for their father’s visa not to be cancelled, presumably on the basis that their interests may be significantly affected (again, presumably adversely by reason of the fact that they may suffer emotional and financial hardship) by cancellation of their father’s visa.

20        Accordingly, when he came to consider whether the risk of harm to the Australian community outweighed the best interests of the applicant’s children the Minister weighed the risk of harm to the Australian community created by even a small risk of the applicant re-offending (on the one hand) against the fact or assumption that it may be in the children’s best interests for the applicant’s visa not to be cancelled (on the other hand). Given this balancing exercise, where the children’s best interests were left at the level of mere hypothesis, it is hardly surprising that the positive finding of a risk of harm to the Australian community from even the small risk of the applicant re-offending outweighed the hypothesis of possible harm to the best interests of the applicant’s children should his visa be cancelled.

21        Applying the reasoning in Vaitaiki and Wan it is apparent that the Minister did not in fact treat the best interests of the applicant’s children as a primary consideration in the decision whether or not to cancel the applicant’s visa. The Minister could not do so because he never confronted the central question of what the best interests of the children required him to decide with respect to the proposed deportation of their father. Not having done so as his starting point, the Minister also could not then assess whether any other consideration outweighed the best interests of the children understood as a primary consideration. For these reasons the Minister departed from the legitimate expectation founded on the Convention and thus denied the applicant procedural fairness. The Minister’s decision is thus vitiated for jurisdictional error.

22        Having so found it is not strictly necessary to deal with the other grounds on which the applicant relied but I propose to do so, albeit briefly.

23        The applicant asserted jurisdictional error by denial of procedural fairness in the Minister not having considered the best interests of the applicant’s children when making a finding as to the national interest. I do not consider that the obligation identified in Teoh extends to interim factual findings. Rather, the obligation attaches to the “action”. Under s 501A(2) the relevant action is the decision whether or not to cancel a person’s visa.

24        The applicant also asserted jurisdictional error by denial of procedural fairness in the Minister not having considered the best interests of the applicant’s children in the context of Direction 41. The Minister, however, was not bound to consider Direction 41. Moreover, nothing the Minister said could have given rise to any legitimate expectation that the Minister necessarily would apply Direction 41. To the contrary, in the notice of intention the Minister said “the Minister may have regard to, but is not bound by, the factors in” Direction 41.

25        The applicant asserted a failure to take into account relevant material being a document with which the Minister was provided entitled “International Obligations and Humanitarian Concerns Assessment”. Nothing in the statutory scheme suggests that this was a document the Minister was bound to consider. Insofar as the document refers to substantive considerations (such as the best interests of the applicant’s children) the source of the obligation to consider that matter is not the document but the entry into force of the Convention. In any event, it is not possible to infer that the Minister took into account only those parts of the document unfavourable to the applicant. The Minister referred to the document at para 20 of the statement of reasons. The fact that the Minister used part of the document to assess the risk of harm to the applicant should he be deported does not found an inference that the Minister ignored the balance of the document.

26        The applicant asserted that the Minister failed to perform his statutory duty or applied the wrong test. In this regard the applicant relied on the fact that the Minister, at para 26, said “I found I could not be satisfied that there was no risk that he would re-offend” and “I concluded that even a relatively small risk of him re-offending presented an unacceptable risk of harm to the Australian community”. The applicant submitted that this involved the Minister in failing to exercise the statutory discretion on the basis that, unless the applicant could establish that there was no risk whatsoever that he would re-offend, the discretion necessarily would be exercised against him. The applicant said the “no risk” of re-offending test effectively denied the existence of the discretion.

27        I do not think that that the Minister was establishing a test in respect of the risk of re-offending. Rather, the Minister was drawing a conclusion about the level of risk to the Australian community he considered appropriate having regard to the nature of the applicant’s crime. This was the task which the statute vested in the Minister. The decision did not miscarry because the Minister judged that even a small risk of re-offending created a risk of harm to the Australian community and consequently the fact that the Minister could not be satisfied that there was no risk of the applicant re-offending was relevant. The decision miscarried because the Minister purported to weigh that risk against a mere hypothesis of what might be in the best interests of the applicant’s children when the law requires the Minister to confront, as a direct and central question, what the best interests of the applicant’s children in fact required him to decide with respect to the proposed deportation of their father. Having answered this question and thereby identified the best interests of the children then, and only then, could the Minister assess whether any other consideration outweighed those best interests understood as a primary consideration.

28        It follows that the applicant is entitled to an order in the nature of certiorari quashing the Minister’s decision. Although the applicant also sought an order in the nature of mandamus requiring the Minister to determine whether or not to cancel the applicant’s visa according to law, it is a matter for the Minister alone whether to reconsider cancellation of the applicant’s visa. By s 501A(6) of the Migration Act the Minister has no duty to exercise the power under s 501A(2). Accordingly, no order in the nature of mandamus can be made. If the Minister decides to consider the exercise of power under s 501A(2) afresh the Minister will be bound to do so according to law irrespective of the making of any order to that effect. The usual order as to costs should be made.

Associate:

Dated:    23 March 2012