FEDERAL COURT OF AUSTRALIA

Makasa v Minister for Immigration and Citizenship [2012] FCA 321

THE COURT ORDERS THAT:

1.    Order absolute in the first instance for a writ of certiorari directed to the Administrative Appeals Tribunal to quash its decision of 18 October 2011.

2.    Order absolute in the first instance for a writ of mandamus directed to the Administrative Appeals Tribunal to determine Mr Makasa’s application under s 500(1)(b) of the Migration Act 1958 (Cth) according to law.

3.    The first respondent pay the applicant’s costs as taxed or agreed.

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

REASONS FOR JUDGMENT

1        On three occasions during the course of 31 August 2009 Mr Makasa had sexual intercourse with a 15 years old girl contrary to s 66C(3) of the Crimes Act 1900 (NSW). In August 2009 he was convicted of these offences by a jury and sentenced to two years imprisonment which he served. At the time that the offences were committed Mr Makasa, a national of Zambia, held a permanent resident’s visa. In this case the question for the Administrative Appeals Tribunal was whether it was satisfied that he had been sentenced to a term of imprisonment of 12 months or more and, if it was, whether it should affirm a prior decision by a delegate of the Minister that his visa should be cancelled. The Tribunal was satisfied as to the indisputable fact of the former and, although it was not bound to do so, it decided to uphold the latter. By these proceedings Mr Makasa seeks to set aside that decision. Pending their resolution Mr Makasa is being detained in immigration detention because he has no visa.

2        The short question is whether the Tribunal’s decision was within jurisdiction. It will not have been within jurisdiction if it misconstrued or misunderstood the controlling rules under which it was operating and if such error caused it ‘to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion’ in such a way that affected the exercise of its powers: Craig v South Australia (1995) 184 CLR 163 at 179. The controlling rules were entitled ‘Direction (No. 41)—Visa refusal and cancellation under s 501’ (‘the Direction’) and the Tribunal was bound to follow them because they had been issued by the Minister under s 499 of the Migration Act 1958 (Cth). The Direction obliged the Tribunal to take into account the need to protect ‘the Australian community from serious criminal or harmful conduct, particularly crimes including violence’: cl 10(1)(a).

3        In this case the Tribunal assessed, in some detail, the events of the preceding evening (that is, 30 August 2006). In respect of that evening, Mr Makasa had been acquitted by the NSW Court of Criminal Appeal of multiple charges involving a joint enterprise to have non-consensual vaginal, anal and oral intercourse with the same 15 year old girl.

4        The Minister for Immigration sought to persuade the Tribunal that, despite that acquittal, it should conclude that Mr Makasa had engaged in non-consensual intercourse with the girl. This attempt failed. Having examined the jury verdicts, the reasons of the Court of Criminal Appeal and additional evidence which was before it, the Tribunal concluded (at [95]):

For these reasons we recognise the force of [the Minister’s] contentions in relation to the probability that the complainant was subjected to multiple acts of intercourse in Mr Makasa’s bedroom. But we do not regard the evidence as justifying a conclusion that Mr Makasa was the perpetrator. Still less are we satisfied that it would be appropriate to conclude that he engaged in intercourse without her consent.

5        In assessing the risk to the community posed by Mr Makasa, the Tribunal was bound by the Direction to take into account certain matters explicitly specified in it. Clause 10.1(2) of the Direction provided that:

The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:

(a)    the seriousness and nature of the relevant conduct; and

(b)    the risk that the conduct may be repeated.

[Emphasis added.]

6        The emphasis on the word ‘include’ should be kept in mind. The Tribunal did not, of course, make findings that Mr Makasa had engaged in the conduct of which he had been acquitted. Leaving aside the effect that the word ‘include’ has upon the issue, cl 10.1(2) was not engaged, for the only conduct to which subclauses (a) and (b) are directed is conduct which has been found to have occurred. This flows from the fact that the conduct is something that subclause (b) contemplates might be ‘repeated’ and because the concept of repetition presupposes an event of original occurrence. This is not to say, of course, that the harm to the community which it is apprehended might arise in the future need be the same as the historical conduct from which the apprehension has arisen or even that there need be a specific finding about what the future harm will be. But the language of subclauses (a) and (b) nevertheless requires the identification of actual past conduct.

7        The Tribunal did not observe this principle. It reasoned in this way (at [121]):

We have set out earlier summaries of the complainant’s evidence, Mr Makasa’s evidence and the evidence of Mr Makasa’s house mate (Mr Chinyani). The evidence of the complainant and Mr Chinyani, when taken together, place Mr Makasa and his co-accused in his bedroom at a time when the girl said intercourse occurred, and Mr Chinyani heard sounds consistent with her claims. Furthermore Mr Chinyani’s evidence established (if accepted) that some of those sounds followed shortly after he gave Mr Makasa condoms. None of this evidence necessarily established that Mr Makasa himself had sexual intercourse with the young girl on the evening of 30 August 2006. Nor did it necessarily establish, despite the young girl’s claims, that the intercourse was non-consensual or that Mr Makasa and his co-accused knew the girl was only 15 years of age. But we do not consider that the relevant considerations in assessing the risk of harmful conduct are confined to the necessary effect of the contentious evidence. We consider that the relevant considerations include reasonable apprehensions about the extent of the person’s involvement in serious criminal conduct. And the contentious evidence about the events of the evening of 30 August 2006 certainly provide a reasonable basis for apprehensions that Mr Makasa not only had sexual intercourse with the girl that evening, but also encouraged his co-accused to have intercourse with her as well.

[Emphasis added.]

8        The first emphasised sentence involves error. The concept of an apprehension under cl 10.1.2(b) relates to what can be apprehended in the future by a reference to what has been found to have happened in the past. It does not authorise apprehension, reasonable or otherwise, about what has happened in the past; more so where the decision maker has expressly declined to make findings that misconduct occurred. The second emphasised sentence displays the same error.

9        That the Tribunal did in fact intermingle the task of finding past conduct with the task of assessing its apprehensions about the future is made clear at [122]:

We consider it is necessary to approach the exercise of the visa cancellation power on the basis of a real risk that Mr Makasa was culpably involved in the sexual intercourse that occurred on that night.

10        The Minister submitted that the Tribunal did not err because the conduct referred to in cl 10.1(2) did not need to be the conduct which had resulted in the sentence of imprisonment for two years. Without deciding whether that be so, it still needs to be conduct which has been found to have occurred rather than conduct which is merely apprehended to have occurred. The Minister also placed emphasis on the word ‘include’ in cl 10.1(2) which showed, so the argument ran, that the clause could be enlivened by matters beyond those appearing in subclauses (a) and (b) and, more particularly, by a reasonable apprehension about past conduct rather than specific findings in respect thereof.

11        The Direction sets out in cl 10 the ‘primary considerations’ which must be taken into account when making a visa cancellation decision. Clause 10.1 deals in detail with the topic of the protection of the Australian community. Clause 10.1(2) is but part of that overall structure. There is no doubt, as the Minister correctly submitted, that cl 10.1 is not an exhaustive statement of the matters which can be taken into account in assessing the protection of the community: Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390 at 396 [19]; [2011] FCA 194 at [19]; Shi v Minister for Immigration and Citizenship (2011) 123 ALD 46 at 48 [9]; [2011] FCA 935 at [9]. But this does not mean that cl 10.1 authorises the assessment of a risk of harm divorced from findings of actual past conduct. The conduct referred to in cl 10.1.2 is the same conduct referred to in cl 10(1)(c) which provides (relevantly):

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:

…

(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

[Emphasis in italics added.]

12        Consequently, cl 10 assumes that its subject matter is identified past conduct. The non-exhaustive nature of clause 10.1(2) therefore operates not so as to permit an examination of matters ranging beyond identified past conduct but rather only so as to allow an assessment of that identified conduct from perspectives other than its seriousness and nature (subclause (a)) or the risk that it might be repeated (subclause (b)).

13        For completeness it should be noted that the Tribunal considered its approach authorised by cl 10.1.2(1), which permits recourse to a person’s ‘previous general conduct’. Having noted, with respect correctly, that general conduct was not confined to proven criminal conduct, the Tribunal concluded that the concept would ‘include any apprehended harmful conduct in relation to which there is a rational and reasonable basis for apprehending a relevant degree of risk of the person’s causal involvement’ (at [120]). This, with respect, is not correct: cl 10.1 requires the identification of past conduct, not an impressionistic appraisal of that which may be reasonably apprehended to have happened. The process of reasonable apprehension is relevant but only once the past conduct is identified and only for the purpose of assessing the future harm to the community.

14        The Tribunal therefore identified the wrong question and, in consequence, did not answer the correct question. This is a jurisdictional error in the hands of an administrative tribunal: Craig v South Australia at 179; Minister for Immigration v Yusuf (2001) 206 CLR 323 at 351 [82] per McHugh, Gummow and Hayne JJ. Writs of certiorari and mandamus will, therefore, issue and the Minister must pay Mr Makasa’s costs as taxed or agreed.

15        Mr Makasa also submitted that the Tribunal’s conclusions about the risk he posed to the community were not based on any probative material. It is not necessary to consider whether this is correct or not. Had it been necessary, however, my view would have been that the Tribunal was very careful and thorough in its treatment of the evidence and that the material before it was sufficient to answer the questions it posed for itself. The problem is that the incorrect questions were asked. Nor would I have accepted, had it arisen, Mr Makasa’s argument that the Tribunal, in discounting the degree of contact he had with his son, had overlooked the fact of his having been in gaol. The Tribunal was plainly cognisant of this fact.

16        The Minister submitted that I should make some remarks about the Tribunal’s decision to set aside his summons addressed to the Office of Public Prosecutions. That decision is not before this Court and no issue arises about it. Any remarks by me would be extraneous to the resolution of this application.

17        No appeal to this Court lay under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) because although in terms that section does expressly confer a right of appeal it is inconsistent with the later enactment of ss 476A(1)(b) and 476A(2) of the Migration Act which expressly and exhaustively regulates review of ‘migration decisions’ in this Court. The complex operation of those provisions and why they limit relief in respect of decisions of the Tribunal under s 501 to those remedies available for jurisdictional error under s 75(v) of the Constitution is explained in Bhullar v Minister for Immigration and Citizenship [2010] FCA 1337 at [4]-[5]. It is true that s 476A does not expressly mention s 44 but the two provisions cannot stand together and what occurs is an example of what Mr Bennion refers to as implied amendment: see Bennion F, Bennion on Statutory Interpretation (5th ed, LexisNexis, 2008) p 293. Consequently, the usual procedure in such a case would be – there having been no antecedent order nisi – to order the issue in the first instance of writs of certiorari and mandamus to the Tribunal to quash its orders and to compel it to perform its statutory function.

18        The consequence is that this Court’s power under s 44 of the Administrative Appeals Tribunal Act to limit the nature of any remittal under ss 44(4) and 44(5) of that Act does not arise. Absent any such limitation, the Tribunal has a level of discretion in matters of procedure: s 33(1). It has not been decided whether the common law attaches to the issue of a writ of mandamus an ancillary power to mould the way an administrative decision maker conducts any subsequent reconsideration. Such a power, if it exists, would resemble in its operation ss 44(4) and 44(5). One argument against the existence of such a power would be that the Tribunal’s duty to consider the matter afresh arises from its original obligation to hear the matter since the settled, although by no means uncontroversial, view in Australia is that a decision made in excess of jurisdiction is no decision at all: cf. Aronson M, Dyer B, Groves M, Judicial Review of Administrative Action (4th ed, Lawbook Co., 2009) p 840, citing Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 579-580. On the other hand, it is not difficult to accept that in cases of apprehended or actual bias, the issue of a writ of mandamus must be able to have appended to it a direction that the decision maker be differently constituted. If the power runs that far, why should it not run to a more general power to shape the entire remittal? The answer to that may be that the true remedy in such cases is a writ of prohibition but it has not always been the practice of Australian courts to address the matter in that way.

19        Ultimately, this question involves difficult issues which it is not necessary to resolve. Even if such a power existed I would not exercise it in this case. The Tribunal’s fact finding was extremely thorough, careful and thoughtful. Although I have concluded that it approached the question of what could be apprehended incorrectly as a matter of law, attempting to confine any further hearing to that issue may well be very difficult to do in practice for too little is known of the full factual record from this Court’s perspective to be able to draw those kinds of lines with confidence. There is the further matter that the Tribunal is obliged to act on material which is up to date (in the sense described in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 30 per Gibbs CJ, 44-45 per Mason J, Dawson J agreeing). Even if there were a power to limit the scope of the remittal any such limitation to a particular issue would have the potential to embarrass the Tribunal in the discharge of that obligation – what, for example, would its effect be if, hypothetically speaking, evidence emerged that since the Tribunal’s last hearing Mr Makasa had been convicted of another offence or had had another child? How the Tribunal proceeds will therefore be for it and by s 33(1)(c) it ‘may inform itself on any matter in such manner as it thinks appropriate’. Its obligation will be to determine all questions of fact and law. The question of whether this requires a full rehearing or something more limited given the procedural history does not arise in this proceeding and it would be unwise to speculate about in the absence of argument.

Associate:

Dated:    2 April 2012