FEDERAL COURT OF AUSTRALIA

Leiataua v Minister for Immigration and Citizenship [2012] FCA 1427

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1    This is a proceeding in relation to which the jurisdiction of the court arises under s 476A(1)(c) of the Migration Act 1958 (Cth) (“the Act”). The applicant, Euta Leiataua, seeks mandamus, prohibition and certiorari under s 75(v) of The Constitution, as made available by s 476A(2), against the respondent, the Minister for Immigration and Citizenship, in relation to a decision which he made on 12 June 2012 to cancel the applicant’s visa (a Class TY Subclass 444 Special Category (Temporary) Visa) under s 501A(2) of the Act.

2    The statutory framework for the power exercised by the respondent in the facts of the present case is to be found in s 501A of the Act, the relevant provisions of which are the following:

(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.

(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.

…

(5)    The power under subsection (2) or (3) may only be exercised by the Minister personally.

It will be seen that s 501A operates by reference to there having been a previous decision by a delegate of the respondent or by the Administrative Appeals Tribunal (“the Tribunal”) not to exercise certain powers under s 501 of the Act. In the present case, it was s 501(2) that was relevant, which 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.

3    As will be noted from the extracts above, both ss 501 and 501A operate, in part, by reference to a concept called the “character test”. By s 501(6), a person does not pass the character test if, amongst other (presently irrelevant) things, he or she has “a substantial criminal record”. By s 501(7), the person would have such a 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.

4    In the County Court of Victoria on 30 October 2009, the applicant, a national of New Zealand, was sentenced to a period of imprisonment with respect to convictions of him for a number of sex offences involving girls under the age of 16 years. The applicant pleaded guilty to two counts of committing an indecent act with a child under 16, to four counts of sexual penetration with a child under 16, and to one count of procuring a minor for child pornography. After making allowance for the concurrent service of the various terms of imprisonment imposed, the effective term to which the applicant was sentenced was five years and six months. The court fixed a non-parole period of two years and six months.

5    The circumstances referred to above led to a delegate of the respondent deciding to cancel the applicant’s visa on 30 November 2011. That cancellation was done under s 501(2) of the Act. The applicant sought a review of that decision in the Tribunal, and, on 23 February 2012, the Tribunal set aside the delegate’s decision. That outcome fell within the terms of s 501A(1)(b) and (d) of the Act, and enlivened the respondent’s power under subs (2) to set aside the Tribunal’s decision and to cancel the applicant’s visa. That is what the respondent did on 12 June 2012.

6    On the day on which he made his decision under s 501A(2), the respondent provided written reasons for that decision. In those reasons, the respondent said the following under the heading “Character Test”:

5.    On 30 October 2009 Mr LEIATAUA was convicted in the County Court of Victoria of the following offences for which he was sentenced to imprisonment as shown:

•    Sexual Penetration Of A Child Under 16 Years (four counts), three years on each count;

•    Indecent Act With Child Under 16, two years;

•    Invite Minor Making/Production Pornography, 12 months; and

•    Indecent Act With Child Under 16, 12 months.

6.    As a result of these sentences of imprisonment, Mr LEIATAUA has a substantial criminal record. For the purposes of the character test, a person has a substantial criminal record if, amongst other things, the person has been sentenced to a term of imprisonment of 12 months or more (s501(7)(c) of the Act refers). By s501(6)(a), a person does not pass the character test if the person has a substantial criminal record, as defined by s 501(7) of the Act.

7.    I find that Mr LEIATAUA does not pass the character test (as defined by section 501) and that he has not satisfied me that he passes the character test.

7    The respondent said the following under the heading “National Interest”:

8.    I am satisfied that it is in the national interest that the visa held by Mr LEIATAUA be cancelled under s501A(2).

9.    I took into account that Mr LEIATAUA’s offences, above, are of a particularly heinous nature, in that they involved him taking advantage of a number of girls under the age of 16 for his own sexual gratification, behaviour which is recognised as causing significant, and potentially long term, harm to the victims. I further took into account the impact that sexual offences have not only on the victims, but on their families and the community at large.

10.    While acknowledging that professional assessments of Mr LEIATAUA’s psychological condition and general attitude and behaviour have concluded that he presents a moderate to low risk of further sexual offending, I am conscious that the risk of re-offending 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.

11.    Having regard to these considerations, I am satisfied that the cancellation of Mr LEIATAUA’s visa is in the national interest.

8    The respondent’s written reasons then moved to the general discretionary considerations which he took into account. He gave “primary consideration” to the protection of the Australian community, to the age at which the applicant commenced living in Australia, to the applicant’s length of residence in Australia and to Australia’s relevant international obligations. Under the latter aspect, the respondent considered “The Best Interests of the Child”, stating:

24.    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 Mr LEIATAUA’s visa.

25.    Mr LEIATAUA has four minor children, Senia Leiataua, aged 16, Harris Leiataua, aged 11 and twins, Jonathan and Benjamin Leiataua, aged ten. All of the children are Australian citizens. I had regard to the close relationship Mr LEIATAUA has with his children and that he is missed by them, particularly so by his three youngest sons. I had regard to the medical problems of all four children including the depression suffered by Senia Leiataua and the learning difficulties, psychological and other health problems of Jonathan and Benjamin Leiataua. I accepted that Mr LEIATAUA’s removal from Australia will have a significant emotional and practical impact on the children.

26.    I noted that prior to his incarceration Mr LEIATAUA was the principal breadwinner for the family and that the family have experienced financial hardship during his incarceration. I accept that his removal from Australia will result in the family, including his minor children, continuing to experience a level of financial hardship.

27.    I accepted that the children will not relocate to New Zealand should Mr LEIATAUA be removed from Australia. I accepted that financial constraints will make it difficult for the children to visit him in New Zealand.

28.    I accepted that removal of Mr LEIATAUA from Australia will deny his children the opportunity to have close personal contact with their father in their formative years. In relation to his three young sons, removal of their father from Australia will deny them the practical and emotional assistance he is able to provide to meet their special needs. I accepted that his removal may exacerbate the psychological problems of all four children, including Senia’s depressive illness. I accepted that removal of Mr LEIATAUA will not be in the best interests of Senia, Harris, Jonathan and Benjamin Leiataua.

9    Having dealt with what he called “other (non-primary) considerations”, the respondent expressed his “conclusion” in the following terms:

37.    I have considered all relevant matters including (1) an assessment against the character test as defined by s 501(6) of the Migration Act 1958, (2) whether cancelling Mr LEIATAUA’s visa was in the national interest (3) Ministerial Direction 41 under s 499 of that Act, as I considered appropriate and (4) all other evidence available to me, including evidence provided by, or on behalf of, Mr LEIATAUA.

38.    In reaching my decision, I concluded that it was in the national interest to cancel Mr LEIATAUA's visa. Mr LEIATAUA's child sex offences are extremely serious and involved three victims aged 14 and 15. Whilst Mr LEIATAUA is remorseful about his offending behaviour in relation to one of the victims, has been assessed a [sic] having a moderate to low risk of re-offending and is currently undertaking a sex offender's course, the risk of re-offending, although low, continues to exist. Any further offending of a similar nature by Mr LEIATAUA would involve a real and significant danger to the Australian community. I have taken into account the circumstances of his wife and children in Australia. I accept that it is in the best interests of his four minor children, who all have special needs and problems, that he remain in Australia. I have given weight to his other links with Australia including the needs of his spouse and adult children, the presence of extended family and his employment and community ties in Australia. However, in my view these factors did not outweigh the public interest considerations of protection of the Australian community.

39.    Having given full consideration to all of these matters. I decided to exercise my discretion to set aside the Tribunal's decision of 23 February 2012 and to cancel Mr LEIATAUA's Class TY Subclass 444 Special Category (Temporary) visa under subsection 501A(2).

10    The applicant challenges the respondent’s act on grounds expressed as follows:

1.    The Minister’s decision of 12 June 2012 is affected by jurisdictional error as the Minister misunderstood and misapplied the statutory test applicable to the decision, namely whether the Minister was satisfied that the cancellation of the Applicant’s visa was in the national interest pursuant to sub-section 501A(2)(e) of the Migration Act 1958, by failing to identify any consideration that is capable of rising to a level of abstraction that engages the “national interest”.

2.    The Minister’s decision of 12 June 2012 is affected by jurisdictional error as the Minister failed to take into consideration the actual and potential harm caused to the Australian community arising from the harm to the four Australian citizen children of the Applicant who are aged under 18 brought about by the cancellation of the Applicant’s visa and his removal from Australia.

3.    The Minister’s decision of 12 June 2012 is affected by jurisdictional error as the Minister erred in concluding that the Applicant’s “risk of re-offending has not yet been tested in the community” given that the Applicant had been living in the community for more than two years between his offending and being sentenced for the offences of which he was convicted.

The applicant advances no challenge to the respondent’s conclusion that he (the applicant) did not pass the “character test”. Paragraphs (c) and (d) of s 501A(2) do not, therefore, require consideration in the present case. However, the applicant does challenge the jurisdictional sufficiency of the respondent’s consideration of the “national interest”, for which para (e) of the subsection provides.

11    The applicant’s first ground alleges that the respondent did not “identify any consideration that is capable of rising to a level of abstraction that engages the ‘national interest’.” The formulation of that expression was based upon the issue which the appellant was given leave to raise on appeal in Tewao v Minister for Immigration and Citizenship [2012] FCAFC 39. Although their Honours in that case held that the considerations which were relevant to the national interest had been identified at the required level of abstraction, they said ([2012] FCAFC 39 at [40]):

It is apparent from this discussion that: – (i) the Minister must give separate consideration to the national interest, (ii) in so doing, the Minister may properly have regard to the circumstances which underpin the failure to satisfy him that the applicant or visa holder passes the character test, (iii) the matters which result in a person failing the character test may also properly provide the foundation for the Minister's satisfaction that it is in the national interest that that person's visa be cancelled but by no means necessarily do so, and (iv) however, “where the same conduct is relied upon for both purposes, there must be something in the nature, or the seriousness of that conduct, or in the circumstances surrounding it to found a satisfaction that it is in the national interest to cancel the visa of the person concerned”.

The words quoted by the Full Court at the end of this passage were taken from the judgment of Gaudron J in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 419 [80], cited, and relied upon, by an earlier Full Court in Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 at 352 [87]. Gaudron J had said (207 CLR at 419 [80]):

To say that the conduct which leads a person to fail the character test may also provide the foundation for the minister's satisfaction that it is in the national interest to cancel his or her visa is not to say that it will always do so. Both issues must be considered separately. And where the same conduct is relied upon for both purposes, there must be something in the nature, or the seriousness of that conduct, or in the circumstances surrounding it to found a satisfaction that it is in the national interest to cancel the visa of the person concerned.

12    In his written outline in the present case, the applicant submitted that the respondent had (and here I quote from the outline) “failed to properly identify ‘something more’ (as it was referred to in Tewao) about the circumstances of the [a]pplicant which justified a finding that the cancellation of his visa was in the national interest”. However, in presenting his client’s case in court, counsel for the applicant eschewed any suggestion that the considerations which moved the Minister under para (e) of s 501A(2) had to involve “something more” apropos the considerations which moved him or her with respect to the character test. But it was submitted that it was essential for the Minister to identify something in the case upon which his or her satisfaction that cancellation of the visa would be in the national interest was based. This was the fourth matter mentioned by the Full Court in Tewao, and it was a matter which, in the submission made on behalf of the applicant, was not separately considered by the respondent in the present case.

13    In this regard, it was first submitted on behalf of the applicant that it was not enough for the respondent to have described the applicant’s offences as “heinous”, “otherwise almost every criminal offence, which could bear that description as ‘heinous’ would so engage the national interest”. However, I could not accept the premise which underlay this submission, namely, that the respondent decided the matter of national interest simply by attaching the label “heinous” to the applicant’s offences. As I read the respondent’s reasons, he described the offences as heinous because it was his view that “they involved [the applicant] taking advantage of a number of girls under the age of 16 for his own sexual gratification”. The respondent was entitled to describe the offences in these terms, and to take a very serious view of the matter. In doing so, the respondent went beyond what was required for the applicant not to pass the character test. He was basing himself on “something in the nature, or the seriousness of [the applicant’s] conduct, or in the circumstances surrounding it”.

14    In this context it is worth noting how little a conclusion that a particular person did not pass the character test by reason of having a substantial criminal record, as defined, would tell one about the facts and circumstances surrounding the case at hand. Almost inevitably as it seems to me, once a decision-maker identifies those facts and circumstances – and most certainly in cases of sexual offences committed against minors – there will be the “something” referred to by Gaudron J. The nature of the facts and circumstances may inform the exercise of the decision-maker’s discretion under s 501(2), or the Minister’s assessment of the national interest under s 501A(2), or his or her discretion under that subsection. But, however the matter arises, once the actual facts of the case are taken into account, it would, in my view, be infrequently the case that the decision-maker had merely carried over his or her conclusion with respect to the character test into later stages of the decision.

15    It was next submitted on behalf of the applicant that there was “nothing in the nature [or] seriousness of the circumstances surrounding the [a]pplicant’s offending which would warrant the Minister utilizing the ‘exceptional’ power conferred by s 501A(2)”, and that the matters to which the respondent referred were “only the matters which establish that the applicant does not pass the character test”. To an extent, I have dealt with this point above. However, I understood it also to be submitted that the respondent’s avowed state of satisfaction with respect to the national interest was not a reasonable one, relying in this respect on Madafferi v Minister for Immigration & Multicultural Affairs (2002) 118 FCR 326 at 353:

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” – Re Patterson; Ex parte Taylor at 447 … (Gummow and Hayne JJ, Gleeson CJ agreeing)..

In Re Patterson, what Gummow and Hayne JJ had said, with reference to s 501(3) of the Act, was that “[t]he criterion that the Minister be ‘satisfied’ is to be understood as requiring the attainment of that satisfaction reasonably” (207 CLR at 447 [167]), citing as authority the judgment of Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 [73]:

There is another preliminary matter that should be mentioned. It concerns the nature of the decision to be made under s 501. The Minister is given a discretionary power to cancel a visa if sub-section (2) applies to a person who holds a visa. Sub-section (2) applies if the Minister, having regard to either of two matters, is satisfied that the person is not of good character. The two matters are either the person's past criminal conduct or the person's general conduct. It is the Minister's satisfaction that makes the subsection applicable. Such provisions are construed as requiring the decision-maker reasonably to be so satisfied. The question then on judicial review is whether the decision-maker could have attained that satisfaction reasonably, in the sense explained in numerous authorities in this Court [R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430, 432; Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360; Federal Commissioner of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28 at 57; Kolotex Hosiery (Australia) Pty Ltd v Federal Commissioner of Taxation (1975) 132 CLR 535 at 567-568, 576-577; Buck v Bavone (1976) 135 CLR 110 at 118-119; Foley v Padley (1984) 154 CLR 349 at 353, 370, 375; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274-276; Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303, 308; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 652-654 [133]-[137]]. In Foley v Padley [(1984) 154 CLR 349 at 370], Brennan J emphasised that the question on judicial review is not whether the court would have formed the opinion in question, and that an allegation of unreasonableness in the formation of the opinion by the decision-maker may prove to be no more than an impermissible attack on the merits of the decision.

An examination of the many authorities referred to in this extract discloses that Gleeson CJ and Gummow J were referring to the established ground of judicial review of administrative action that the decision-maker could not, acting reasonably, have arrived at the conclusion, or made the decision, in question.

16    It was submitted on behalf of the applicant that the respondent’s description of the offences in question as “heinous” was neither “rational” nor “reasonable” because the offences were properly to be viewed as being “at the lower end of the scale” of seriousness for offences of this kind. In my view, however, the line of jurisprudence to which the applicant referred does not open up to him as justiciable a complaint of this kind. There is an important difference, in administrative law, between a complaint that a decision must have been irregularly made because no decision-maker, properly advised as to the extent and nature of the relevant statutory power, could reasonably have made it and a complaint that a decision was, in point of substance, unreasonable. A decision of the former kind attracts the remedies which the applicant seeks in the present case. A decision of the latter kind does not. So long as the decision-maker properly understands the extent and nature of the power, takes all required considerations into account, and does not take irrelevant considerations into account, at least in the normal case and absent indications to the contrary in the statute concerned (such a s 501A(2)(c) of the Act), his or her decision is not judicially reviewable by reference to some absolute concept of reasonableness.

17    Likewise, the submission made on behalf of the applicant that the respondent’s observation that he had taken into account “the impact that sexual offences have not only on the victims, but on their families and the community at large” was no more than something that could be said about a range of offences does not engage with the legal issues raised by the remedies which he seeks. Even if it might be said, at the general level, that there are many offences which have an impact on the community at large, the fact that offences of the kind committed by the applicant were regarded by the respondent as having such an impact was four-square within the range of circumstances which he was entitled to take into account in addressing the question arising under s 501A(2)(e). A submission along similar lines was made with respect to the respondent’s statement, made in the context of his consideration of the risk of re-offending, that “the consequences of any further offending of a similar nature to that he has already committed would be extremely grave”. The applicant submitted that the same could be said of any offence that might fail the character test. For my own part, I do not know whether it could. What matters, however, is that this part of the respondent’s reasons was forward-looking, thus necessarily going beyond the matters which justified the conclusion that the applicant did not pass the character test.

18    For the above reasons, I reject the applicant’s first ground.

19    Under his second ground, the applicant submitted that the prospect of harm to his own children aged less than 18 years, considered by the respondent as a general discretionary matter, was a mandatory item for consideration with respect to the national interest. It should have been considered as part of the process of the respondent satisfying himself specifically under para (e) of s 501A(2). Had it been, it would have been placed on the scales as tending against the respondent reaching the requisite state of satisfaction. That is to say, the fact that some Australian children would be harmed if the applicant’s visa were cancelled should have been regarded as making it less likely that the respondent could properly be satisfied that the cancellation would be in the national interest.

20    The ground appears to be based upon the law which was summarised by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39:

The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action.

His Honour also said (162 CLR at 39):

The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision.

In the present case, the applicant accepted the law as so summarised, and sought to establish that it was an implied requirement of s 501A(2) – because it certainly was not an express one – that, in a case where children are involved, either as victims of crime or as family members of the person concerned, the requisite state of satisfaction could not be reached without a consideration of the harm that might be visited on those children, either by the cancellation of the visa or by the refusal to cancel.

21    Uninstructed by authority, I would not accept that submission. Giving content to the “national interest” has been left by the terms of s 501A(2) to the Minister. While it might be possible to conceive of a case where a particular fact relied on by the Minister was so conspicuously irrelevant to any concept of the national interest (eg that the person concerned had dandruff) so as to permit the conclusion that an irrelevant consideration had been taken into account, to perceive in this very spare, high-level, statutory formula an implicit instruction to regard some unstated fact or circumstance as essential for consideration would, in my view, be problematic. Such a perception on the part of a court would, as it seems to me, be directly antagonistic to the terms of the Act itself, which, as I say, makes the content of the national interest a matter for the Minister.

22    I take the view that, in this second ground, the applicant is seeking to impress upon s 501A(2) a construction which is informed by his own circumstances, and the needs of his own case. That is not a permissible approach. Although speaking of s 501(2) of the Act, which makes no reference to the national interest in terms, the principle with which the applicant’s second ground, as elaborated upon in the course of submissions made on his behalf, is inconsistent is that stated by Kiefel and Bennett JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at 523 [74]:

If the Minister were able, consistent with the object of the Act, to consider a matter as broad as the national interest, in determining whether a person ought to be permitted to remain in Australia, it does not seem possible to imply some obligation on the Minister’s part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed.

Likewise in the present case: it is not possible to imply into the very broad terms of s 501A(2)(e) a mandatory requirement that the Minister consider, as a factor going to the national interest, the harm that would, or could, be visited on the applicant’s own children as a result of the cancellation of his visa.

23    But it was submitted on behalf of the applicant that the matter under discussion here is not free of authority which I should follow. In Gbojueh v Minister for Immigration and Citizenship (2012) 202 FCR 417, the respondent Minister had, in his determination under s 501A(2), been misinformed in two respects, and had carried each relevant item through into his reasons. The first was that the applicant (whose visa was cancelled) had committed the sexual offences for which he was sentenced in relation to a girl who was, at the time, in his “care”. The second was that there was no evidence that the applicant had participated in a rehabilitation program, and that the applicant had failed to explain why he did not so participate. Dealing with the question whether these things fell within the matters which the Minister was bound to take into account in the Peko-Wallsend sense, Bromberg J observed (with reference to authority) that “the matters that the Minister may take into account in determining the national interest are largely matters for the Minister” (202 FCR at 426 [43]). His Honour continued (202 FCR at 426 [44]):

The exercise calls for a broad evaluative judgment. It calls for the Minister’s satisfaction in relation to a power that may only be exercised personally by the Minister: s 501A(5). Political responsibility and accountability is reposed in the Minister in relation to a subject matter of wide scope. All of that, strongly suggests that the Minister is left largely unrestrained to determine for him or herself what factors are to be regarded as relevant when determining whether the cancellation or refusal of a visa is in the national interest and thereafter whether to exercise the discretion conferred by s 501A(2).

24    However, in passages upon which the applicant relied in the present case, Bromberg J said (202 FCR at 427 [45]):

There is however one consideration that is so central to the subject matter dealt with by s 501A(2), that it is difficult to imagine that Parliament did not intend it to be a consideration the Minister is bound to take into account, both for the purpose of determining the national interest and the residual discretion. It is unlikely that the potential for the Australian community to be harmed by the continued presence in Australia of the non-citizen was intended as an optional consideration at the Minister’s election. In my view, and consistently with the view of the majority (Black CJ and Sackville J) in Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346, the Minister is bound to consider that potential for harm to the Australian community in the exercise of the power conferred by s 501A(2).

And (202 FCR at 430 [65]):

The extent of the applicant’s rehabilitation, was a factor the Minister was bound to take into account in considering the risk to the Australian community of allowing the applicant to remain. The Minister failed to do so on the basis of accurate information before him as to the applicant’s participation in rehabilitation programs. Having failed to take into account an accurate account of the applicant’s rehabilitation, the Minister ignored relevant material in a way that affected the exercise of his power.

25    In one aspect of his reasoning in Gbojueh, Bromberg J perceived a tension between the earlier Full Court decisions in Huynh and Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346. For that reason (and possibly for others) in the present case counsel for the respondent indicated that his client did not necessarily accept the correctness of Gbojueh, and desired to keep open the points upon which the Minister had been unsuccessful in that case. But counsel was content to argue the present case on the assumption that I would not depart from the law as established in Gbojueh. That was an appropriate course, and I shall proceed in accordance with the respondent’s position.

26    As it happens, I take the view that Gbojueh does not assist the applicant in the present case. What Bromberg J held to be a mandatory consideration for the Minister under s 501A(2) was “the potential for the Australian community to be harmed by the continued presence in Australia of the non-citizen ….” (Emphasis added). But that does not align with the applicant’s case here, which is that the Minister was obliged to consider a circumstance giving rise to an anticipation of harm from the removal of the applicant from Australia. Additionally, in his consideration of the national interest aspect of the Minister’s decision, Bromberg J relied on the passage from Huynh to which I have referred above (para 22), and continued (202 FCR at 427-428 [50]):

In this case, in determining the question of the national interest, the Minister correctly identified the offences committed by the applicant. Given the broad-based and impersonal perspective from which the national interest is to be considered, the Minister was entitled to evaluate the seriousness of the applicant’s conduct by reference to the type of offences committed without descending into a consideration of the specific circumstances in which the offending occurred, including whether or not the child victim was or was not in the applicant’s care when the offending occurred. On the basis of the same reasoning, the Minister was entitled to determine the risk to the community, without addressing the personal circumstances of the applicant’s rehabilitation. Insofar as the Minister descended to such considerations he was engaged with permissive rather than mandatory considerations in relation to which jurisdictional error cannot be established.

The point which his Honour decided against the Minister, as extracted in the second passage in para 24 above, related not to the national interest but to the general discretion which arises under s 501A(2) once the character test and national interest requirements have been considered. In the present case, by contrast, the applicant’s point is confined to the national interest. No complaint about the respondent’s treatment of general discretionary considerations is raised: indeed, as noted above, the very complaint which the applicant makes is that the matters which the respondent quite uncontroversially considered under the discretionary part of his reasons ought to have informed his assessment of the national interest.

27    For the above reasons, I reject the applicant’s second ground.

28    In support of the applicant’s third ground, it was submitted that the respondent’s observation that “the risk of re-offending has not yet been tested in the community” was “wrong”, because the applicant had been released after being charged and remained in the community for two years until he was sentenced on 30 October 2009. In anticipation of the obvious response that this submission related only to the respondent’s fact-finding function, the applicant’s case was expressed in his outline as follows:

It is not contended that erroneous finding itself constitutes a jurisdictional error. Rather the erroneous finding has led the Respondent to fail to take into consideration a relevant matter, i.e. that the Applicant’s prospects of rehabilitation have been “tested in the community” and that he “passed” the test.

The argument advanced on behalf of the applicant in oral submissions commenced with the holding by Bromberg J in Gbojueh (202 FCR at 430 [65] – see para 24 above) that “the extent of [a person’s] rehabilitation was a factor the Minister was bound to take into account in considering the risk to the Australian community of allowing [the person] to remain”. It was accepted that, in the present case, the respondent did give consideration to the extent of the applicant’s rehabilitation, but in doing so the respondent “ignored a relevant and significant piece of evidence that impacts upon that mandatory consideration”.

29    There is, of course, a distinction between a “matter” that must be taken into account for the valid exercise of a power in the Peko-Wallsend sense, on the one hand, and the correctness of a finding that the repository of the power makes in relation to such a matter, on the other hand. But Peko-Wallsend also established that, where some fact or circumstance is, by the relevant statute –

… vital to the exercise of the Minister’s discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand.

(162 CLR at 44). There may be a question whether there is a distinction between a matter which a decision-maker is bound to take into account and a matter which is “vital” to the exercise of his or her discretion, but that question does not need to be explored in the present case. As I understand the applicant’s case under the third ground, he relied directly upon Gbojueh, and upon the corollary of the requirement to take the extent of rehabilitation into account, derived from Peko-Wallsend and applied by Bromberg J in Gbojueh, that the information to which attention is given must be factually accurate. As in the earlier part of the case, noted above, the respondent wishes to be understood as reserving his position on the correctness of Gbojueh, but is content to have the present case determined in accordance with it.

30    An immediate difficulty which the applicant’s case confronts is that the relevant passage from Gbojueh on which he relies is to be found not in the part of Bromberg J’s reasons which dealt with the national interest, but in the part of the reasons which dealt with the general discretion arising under s 501A(2). As noted above, when dealing with the national interest as such, his Honour held that the Minister was “entitled to determine the risk to the community without addressing the personal circumstances of the applicant’s rehabilitation” (202 FCR at 428 [50]). In the present case, the applicant would rejoin that the respondent did in fact consider the matter of recidivism under the national interest heading and, having done so, was obliged to base that consideration upon the most accurate information available. I would not accept that rejoinder. The remedies which the applicant seeks are concerned, relevantly, with matters which the respondent was bound to take into account, and only then with the accuracy of the information which was before him in that regard. Absent a requirement to take a particular matter into account, a complaint about the accuracy of information upon which the respondent based his conclusion on the national interest aspect is no more than a factual challenge in relation to a subject on which it was the respondent alone whose state of satisfaction was made relevant by the Act.

31    A further difficulty for the applicant is that, on the facts as they appear to the court, the respondent was not presented with inaccurate information at all. The information on which he based his finding that “the risk of re-offending has not yet been tested in the community” was contained in the professional assessments of the applicant’s “psychological condition and general attitude and behaviour”. As pointed out by counsel for the respondent, there does not seem to be any doubt that these assessments were made immediately before, and for the purposes of, the sentencing of the applicant on 30 October 2009. What I would consider to be the more natural reading of the respondent’s reasons in relevant respects – that the “moderate to low risk of further sexual offending” as so assessed was that which had not been tested in the community – reflected the true state of affairs. When the respondent’s reasons are properly understood, there is seen to be no substance in the submission that he was incorrectly advised as to the facts upon which his decision on the natural interest aspect would be based; neither, and correspondingly, is there any substance in the ground in support of which the submission was made.

32    For the above reasons, I reject the applicant’s third ground.

33    The application must be dismissed. I was advised that there is nothing in the circumstances of the case that would make the conventional costs order inappropriate, and I shall order the applicant to pay the respondent’s costs.

Associate:

Dated:    21 December 2012