FEDERAL COURT OF AUSTRALIA

Baker v Minister for Immigration and Citizenship [2012] FCA 300

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Applicant pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

1    The applicant was the holder of a visa which permitted him to remain in Australia permanently, subject to the provisions of the Migration Act 1958 (Cth) (‘the Act’). The applicant’s visa was cancelled because of his failure to satisfy the first respondent (‘the Minister’) that he passed the character test. The failure to satisfy the character test stemmed from the applicant’s criminal record. The applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for a review of such cancellation. Such application was unsuccessful, and in its decision dated 5 September 2011 (‘the decision’) the Tribunal affirmed the Minister’s decision to cancel the applicant’s visa because of his failure to pass the character test.

2    The applicant now applies to this Court for a writ of certiorari to quash the decision and a writ of mandamus requiring the Tribunal to determine the application again according to law.

FACTS

3    The applicant was born on 20 December 1979 in Papua New Guinea. He left Papua New Guinea at approximately age seven and has spent most of his formative years in Australia with his family.

4    The applicant’s parents and brother live in Australia. The applicant is not married but he has three children who were referred to in the decision as T1, T2 and R. T1 resides with her maternal grandmother. T2 and R reside with their mother, who is not the mother of T1.

5    The applicant has an extensive criminal history. The applicant committed his first offence in 1998. Thereafter the applicant has been convicted of numerous offences, some of which have resulted in periods of imprisonment. The applicant has only been employed for two periods for a total period of 10 months for the whole of his residency in Australia. His criminal record comprises drug offences, public order offences, larceny and other dishonesty offences and some offences involving violence or the apprehension of violence, including convictions for common assault, assaulting police and stalking or intimidating with intent to cause fear of physical or mental harm.

6    The most serious of these offences and the offence for which the applicant is currently serving a gaol sentence involved an assault perpetrated by him on the mother of T2 and R. According to the sentencing remarks, which the Senior Member recorded in her decision, the applicant entered the victim’s home and assaulted the victim with a blunt instrument which caused a wound to the victim’s back. The child T2, at the time three years old, was present during the assault. The applicant removed T2 from the room and then continued the assault on the victim. The applicant received a sentence of 3 years and 5 months with a non-parole period of 2 years and 6 months. The applicant has drug dependency issues and is undergoing methadone treatment in prison for his heroin dependency.

VISA CANCELLATION

7    By letter date 7 June 2011 the Department of Immigration and Citizenship gave notice that the Minister had decided to cancel the visa. Such letter relevantly stated:

After careful consideration of your response and the matters listed in the Notice of Intention to Consider Cancellation, the delegate of the Minister has decided to cancel your visa pursuant to subsection 501(2) of the Act.

Under subsection 501(2) of the Act, the delegate of the Minister may cancel a person’s visa if the delegate of the Minister reasonably suspects that the person does not pass the character test, and the person does not satisfy the delegate of the Minister that the person passes the character test.

The particular ground upon which the delegate of the Minister suspected that you do not pass the character test and the ground under which you have failed to satisfy the delegate of the Minister that you pass the character test is:

Subsection 501(6)(a):     the person has a substantial criminal record (as defined by subsection 501(7)). Under subsection 501(7)(c), a person will have a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.

8    Section 501(2) of the Act provides:

(2)     The Minister may cancel a visa that has been granted to a person if:

(a)     the Minister reasonably suspects that the person does not pass the character test; and

(b)     the person does not satisfy the Minister that the person passes the character test.

9    Pursuant to s 501(6) of the Act a person is taken not to pass the character test if he or she has a ‘substantial criminal record’. By virtue of s 501(7) a person has a substantial criminal record if he or she has been sentenced to a term of 12 months imprisonment or more, or has been sentenced to two or more terms of imprisonment totalling two years or more.

10    The Minister has a discretion with regard to decisions under s 501(2). This discretion must be exercised in accordance with ‘Direction [No. 41] – Visa Refusal and Cancellation’ (‘the Direction’) which was made by the Minister on 3 June 2009. The Direction was made pursuant to s 499 of the Act and binds the Tribunal: see s 499(2A) of the Act. The Direction requires due consideration to be given to the objective of the Act to regulate, in the national interest, the coming to and presence in Australia of non-citizens and the protection of the Australian community from unacceptable risks of harm as a result of criminal activity or other serious misconduct by non-citizens. The Direction lists ‘the primary considerations’ and the ‘Other considerations’ that the decision-maker must take into account in exercising the discretion.

TRIBUNAL’S DECISION

11    The Tribunal considered the relevant issue before it, namely whether it should exercise its discretion not to cancel Mr Baker’s visa. The Tribunal considered the nature and seriousness of Mr Baker’s conduct including his extensive criminal record and then directed its mind to the matters required of it by the Direction. Having done so, it then addressed its conclusions in [85] and [86] of the decision. Those paragraphs provided:

85. Despite evidence that suggests Mr Baker may have been making efforts to change his behaviour, I am not satisfied that he will not revert to committing serious and violent offences. His history suggests a high probability that he will again revert to abusing drugs and commit serious, violent offences. There is, in my view, an unacceptable risk of harm to the Australian community from his conduct in the future. I am not satisfied that the other primary considerations outweigh that unacceptable risk of harm. In particular, I am not satisfied, on the available evidence, the best interests of two of Mr Baker’s three children favour that he remain in Australia. As to the third child (T1) it is only marginally in her best interests that Mr Baker remain in Australia. His relationship with all his children has been non-existent for over two years, and there is no evidence that their best interests would be served by him remaining in the country or even that he will be able to see them in future if he does.

86. I accept that Mr Baker’s family, especially his mother, wish to support him and that they may be distressed at his removal from Australia. I acknowledge that he has few, if any, meaningful ties in PNG and that it will be very hard for him to establish himself there. It is quite possible that, if he is deported, his rehabilitation will be set back. However, I am satisfied that the degree of unacceptable risk that he poses to the Australian community outweighs all other considerations. The discretion in s 501 of the Act should not be exercised in Mr Baker’s favour.

GROUNDS OF APPEAL AND APPLICANT’S SUBMISSIONS

12    The applicant does not challenge the conclusion that the applicant does not satisfy the character test. Rather, the challenge is confined to the manner in which the Senior Member exercised her discretion as guided by the Direction.

13    The applicant submits that the decision was vitiated by jurisdictional error. Specifically it is claimed that the Tribunal misapplied the Direction in the way it compared a primary consideration in cl 10 of the Direction entitled ‘the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence’ with the other considerations listed in cl 10. The applicant argues that the Tribunal was required to weigh each of the primary considerations singularly and cumulatively against each of the others, particularly in respect of the children’s interests, and cites Minister for Immigration & Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 (‘Teoh’) for this proposition.

14    The applicant submits that the Tribunal’s reasons demonstrate that the Tribunal failed to consider those primary and non-primary considerations that stood in the applicant’s favour cumulatively as against the ‘negative’ of the applicant’s criminal history and instead weighed each positive factor individually against the applicant’s criminal history. The applicant submits that such error is evident from the Senior Member’s summary of conclusions contained in [85] of the decision. Further, the applicant refers to [86] of the decision and claims that it is not apparent whether primary considerations were included in the decision.

THE DIRECTION

15    The Direction has application as stated in cl 4(1) of the Direction:

This Direction applies to decision-makers performing functions or exercising powers under section 501 of the Act to refuse to grant a visa to, or to cancel a visa of, a person who does not satisfy the Minister that the person passes the character test.

16    Clause 5 constitutes the preamble to the Direction. Clause 5.1(1) provides:

The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.

17    Pursuant to cl 5.2, the Direction is binding on all decision-makers.

18    Part A – Application of the character test in the Direction contains cl 7 which makes provision, in detail, for the character test. Clause 7 provides:

7. Overview of the character test

(1)    A visa may be refused if the person does not satisfy the Minister that the person passes the character test. A visa may be cancelled if the decision-maker reasonably suspects that the person does not pass the character test and the person does not satisfy the decision-maker that they pass the character test.

(2)    The character test is set out in section 501(6) of the Act and it provides that a person does not pass the character test in certain, specified, circumstances. Those circumstances are discussed in further detail below.

19    Clause 7.1 of the Direction provides:

Substantial criminal record

(1)    A person des not pass the character test if the person has a substantial criminal record. The term ‘substantial criminal record’ is defined in section 501(7) of the Act.

20    For present purposes, cl 7.3 is applicable. It provides as follows:

7.3 Not of good character on account of past and present criminal or general conduct

(1)    A person will not pass the character test if the person is not of good character, having regard to their past and present criminal and/or their past and present general conduct.

    Note: See section 501(6)(c) of the Act.

(2)    In considering whether a person is not of good character, all the relevant circumstances of the particular case are to be taken into account, including evidence of rehabilitation and any recent good conduct.

21    It should also be observed that the future risk of engaging in criminal conduct is a matter for consideration as provided by cl 7.4.1:

7.4.1 Significant risk of engaging in criminal conduct in Australia

(1)    A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a significant risk that the person will engage in criminal conduct in Australia.

    Note: See section 501(6)(i) of the Act.

(2)    The reference to criminal conduct must be read as requiring that there is a significant risk of the person engaging in conduct for which a criminal conviction could be recorded.

22    Part B of the Direction is entitled ‘Exercising Discretion’ and relevantly provides in cl 8(1) thereof:

8. When to exercise the discretion

(1)    If, following formal consideration, the person does not satisfy the decision-maker that the person passes the character test, consideration should be given to whether to exercise the discretion to refuse or cancel a visa.

23    The primary considerations are listed in cl 10 of the Direction:

The primary considerations

(1)    In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:

(a)    the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

(b)    whether the person was a minor when they began living in Australia;

(c)    the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and

(d)    relevant international obligations, including but not limited to:

(i)    the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and

(ii)    the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

24    Clause 11 is entitled ‘Other considerations’ which, as the note to the clause records, are not primary considerations. Clause 11.1 relevantly provides:

(1)    In reaching a decision on whether to refuse or cancel a visa, other considerations, although not primary, may be relevant and, if so, must be considered.

(2)    It is appropriate that these considerations, where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations.

(3)    These other considerations include:

(a)    family ties, the nature and extent of any relationships:

(i)    the extent of disruption to the person’s family,…

CONSIDERATION

25    Certain principles applicable to the approach to be taken by an appellate court on judicial review need to be stated. The first relevant principle was considered by the High Court of Australia in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. That judgment cites Collector of Customs v Pozzolanic (1993) 43 FCR 280 where the Full Federal Court stated at 287:

The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.

26    The majority in Wu Shan Liang also stated at 272:

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. [Footnote omitted]

27    Secondly, it is not an error of law if the decision-makers express their reasons sequentially. Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 73 ALD 1 said at 5:

Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily, they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him.

28    In Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 the Full Court at [90] made reference to the artificiality of relying upon only one paragraph of the Minister’s decision to found a challenge to its validity.

29    Thirdly, the decision ‘should be read as a whole’: see Board of Trustees v Edington (2011) 119 ALD 472 at 491.

30    Fourthly, as a matter of general principle it is for the decision-maker to give such weight to the relevant considerations as he or she deems appropriate, unless directed otherwise. The observations of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at [41] are relevant. His Honour said:

It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Sean Investments Pty Ltd v. MacKellar; Reg. v. Anderson; Ex parte Ipec-Air Pty Ltd; Elliott v. Southwark London Borough Council; Pickwell v. Camden London Borough Council. [Footnotes omitted]

31    The decision records the Senior Member’s consideration of the mandatory requirements of the Direction. For example, she considered the nature and seriousness of the applicant’s conduct as required by cl 10.1.1 of the Direction; whether the applicant was a minor when he began living in Australia (cl 10.2 of the Direction); the length of time that the applicant had been a resident in Australia (cl 10.3); any relevant international law obligations including the best interests of the child as described in the Convention on the Rights of the Child (cl 10.4) and the best interest of any child that might have been affected, namely the applicant’s three children (see cl 10.4.1).

32    Thereafter the decision addressed matters which were described as ‘not primary’, namely the applicant’s family ties to Australia and the nature of the relationship (see cl 11), the applicant’s links to Papua New Guinea and the hardship which is likely to be experienced by the applicant or immediate family members resident in Australia (see cl 11.1 of the Direction) if the visa were cancelled.

33    Clause 5.1(1) of the Direction refers to the regulation, in the national interest, of the coming into and the presence in Australia of non-citizens (see above). Clause 5.1(2) provides:

In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens. (Emphasis added)

34    The Senior Member adopted the identical words ‘unacceptable risks’ in the decision at [86], thereby indicating that the Senior Member was mindful of the objective of the Direction. In this respect the Senior Member gave great weight to the protection of the Australian community, as demonstrated by the decision. Under the primary considerations the Senior Member reviewed the applicant’s prior conduct and concluded that whilst the applicant might have a ‘greater insight into his problems’ and had taken ‘some steps towards rehabilitation’. She was not satisfied that when released from gaol ‘[the applicant] will resist the temptation of using illicit drugs, which may in turn cause him to re-offend’. Significantly, at [47] of the decision the Senior Member said inter alia:

In my view, given his past history of serious offences including crimes of violence and drug use and his failure to comply with judicial orders, he represents an unacceptable risk to the Australian community. Thus, the first primary consideration strongly favours the cancellation of Mr Baker’s visa.

35    In respect of the other primary considerations the Senior Member found that the applicant’s young age when he came to Australia weighed in the applicant’s favour, but that this consideration did not outweigh the first consideration, namely the protection of the Australian community. The Senior Member also found that the length of time the applicant had resided in Australia before he engaged in criminal activity weighed in his favour, but this factor also did not outweigh the first primary consideration.

36    The Senior Member also found the absence of a relationship between the applicant and T1 and T2 and the fact that the applicant would be unlikely to resume a relationship with those children while they lived with their mother meant that this factor did not weigh in favour of the discretion to not cancel his visa being exercised. The factor of the applicant’s relationship with R1 was deemed to be only marginally in the applicant’s favour.

37    In written submissions, the applicant referred to the decision of the High Court in Teoh. At page 292 of that decision Mason CJ and Deane J said:

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.

38    The Senior Member carefully considered the interests of all children before reaching her decision. In relation to T1, the Senior Member said at [59]:

I accept that [the applicant] had a relationship with T1 until he went to gaol and I accept that he does not want her to see him in gaol. I accept that Mrs Baker, her grandmother, has endeavoured to maintain her family’s connection with T1 while Mr Baker is in gaol. I do not know the likely effect on T1 of any separation or her wishes. I understand that she lives with her grandparents. The mother’s role in her parenting is unknown. Her attitude towards her father’s offences and his subsequent imprisonment – if indeed she knows him to be in gaol at all – is unknown. It was unclear if there was any formal shared care arrangement in place in relation to T1 and whether such an arrangement, formal or otherwise, could be re-activated on his release. Notwithstanding the limited available evidence, I find that it is likely to be somewhat in T1’s best interests that she have the opportunity to resume a relationship with her father should she wish to do so.

39    However, the Senior Member concluded at [68] in respect of T1:

While I consider that it is marginally in the best interests of T1 that Mr Baker remain in Australia so that he can be in a position to resume a parenting role, this primary consideration however does not outweigh the ‘protection of the Australian community’: Tuatara v Minister for Immigration & Citizenship [2010] FCA 1324 at [45] – [47]

40    As to the children T2 and R, the Senior Member observed at [63]:

I consider that there is little prospect of Mr Baker having contact with T2 and R in the foreseeable future, let alone providing them with daily care, given his history of chronic drug abuse, his long criminal history and the violent assault upon their mother. He has not lived with T2 and R since 2008 and is subject to an Apprehended Violence Order preventing him from having contact with their mother. These factors, in my view, make it doubtful that he would be able to pursue any kind of close or meaningful relationship with his children in the future.

41    At [65] the Senior Member said:

The Direction acknowledges that it is generally presumed under Australian law that a child’s best interests are served by remaining with its parents. In this case, living with both parents is not a realistic option for any of the children, especially T2 and R. Mr Baker’s solicitor agreed that any relationship Mr Baker might have with T2 and R in the future was unlikely to occur in the absence of a court order. Whether he would succeed in obtaining such order is, in my view, unclear.

42    At [66] the Senior Member said in relation to T2 and R:

In summary, I do not consider that it is necessarily in the best interests of T2 and R that Mr Baker remain in Australia. In forming that view, I placed particular weight on Mr Baker’s disregard for his children’s welfare in supplying their mother with heroin.

43    The above demonstrates that the Senior Member treated, as a primary consideration, the welfare of the applicant’s children. Accordingly, the requirement referred to in Teoh has been satisfied.

44    As to the other considerations, the Senior Member acknowledged that the impact of his visa cancellation on his family might result in emotional distress to them, but again this factor did not outweigh the primary consideration of the protection of the Australian community. The Senior Member also acknowledged that some hardship might be suffered by the applicant upon resettling in Papua New Guinea and that he may not have access to treatment for his drug dependency issues in Papua New Guinea as he might have if he remained in Australia. Nevertheless, such a consideration was insufficient to outweigh the interests of the protection of the Australian community.

45    The Court accepts that the Senior Member’s observation of the ‘unacceptable risk’ that the applicant posed to the Australian community ‘outweighs all other considerations’ could be said to be unclear in that she did not specify whether the ‘other considerations’ took into account the totality of the primary considerations as well as the non-primary considerations. However, when the decision is read as a whole it is clear that the Senior Member weighed all issues sequentially. The Senior Member considered the character test at [3]-[9], then having done so moved to the critical issue of whether the Tribunal should exercise its discretion not to cancel the applicant’s visa. Such an inquiry required an examination of the nature and seriousness of the applicant’s conduct, the risk of a repetition of such conduct, and of the primary and other considerations. Accordingly, the Senior Member fulfilled her duty of deciding whether the applicant’s visa should be cancelled. Each of the relevant matters taken separately were considered in reaching the decision to cancel the visa.

46    The Court concludes that in [86] of the decision the Senior Member was stating her finding that cumulatively ‘all other considerations’, both primary as stipulated in cl 10 and ‘Other considerations’ in cl 11 of the Direction, were insufficient to outweigh the overriding consideration of harm to the Australian community.

47    It follows that the application should be dismissed with costs.

Associate:

Dated:    27 March 2012