FEDERAL COURT OF AUSTRALIA

Nweke v Minister for Immigration and Citizenship [2013] FCA 456

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Applicant pay the costs of the Respondent.

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

REASONS FOR JUDGMENT

1    This proceeding concerns an application to quash a decision of the Minister for Immigration and Citizenship (‘the Minister’) made on 12 December 2012 to cancel the applicant’s Class BS Subclass 801 Spouse Visa (‘the visa’).

2    This is the second time the Minister has made such a decision, having previously done so on 5 September 2011. That earlier decision however was quashed by this Court on 23 March 2012, when her Honour Justice Jagot found that the Minister had failed to provide procedural fairness to the applicant and in doing so had committed jurisdictional error: see Nweke v Minister for Immigration and Citizenship (2012) 126 ALD 501 at [5]-[6] (‘the prior decision’).

BACKGROUND

3    The applicant is a 37 year old Nigerian citizen. He arrived in Australia on 18 September 2000, and on 11 April 2003 was granted a permanent residence visa as the spouse of an Australian citizen. The applicant is the father of four children, all of whom are Australian citizens by birth.

4    On 9 March 2007, the applicant was convicted of aiding and abetting the importation of less than a trafficable quantity of cocaine. On 5 November 2007, he was sentenced to 10 years imprisonment with a non-parole period of six and a half years. Due to time already spent in incarceration, the applicant’s non-parole period ended on 30 September 2011.

5    On 21 April 2011, just over five months prior to the applicant’s non-parole period was due to end, a delegate of the Minister cancelled the applicant’s visa. The delegate found that the applicant did not satisfy the character test due to his substantial criminal record (‘the delegate’s decision’).

6    Upon an application to review the delegate’s decision, the Administrative Appeals Tribunal (‘the AAT’) set aside the delegate’s decision on 12 July 2011.

7    As referred to at [2] above, on 5 September 2011, the Minister set aside the decision of the AAT and cancelled the applicant’s visa pursuant to s 501A(2) of the Migration Act 1958 (Cth) (‘the Act’). Such decision was quashed by this Court on 23 March 2012.

8    On 12 December 2012, the Minister again decided to cancel the applicant’s visa under s 501A(2) of the Act. The applicant challenges the Minister’s decision on four grounds that are said to constitute jurisdictional error, those being that:

i.    the decision was made for an improper purpose;

ii.    the Minister failed to take into account relevant material in making the decision;

iii.    the Minister failed to perform his statutory duty; and

iv.    the Minister based his decision on speculation rather than reasonably probative evidence.

9    At the hearing of this application, leave was granted by the Court to permit the applicant to rely on an additional ground, namely that the Minister denied the applicant procedural fairness.

LEGISLATIVE FRAMEWORK

10    The Minister may cancel a visa where he reasonably suspects that the visa holder does not pass the character test, and the visa holder does not satisfy the Minister that he or she does: s 501(2) of the Act. A person will not pass the character test where he or she has a substantial criminal record: s 501(6)(a) of the Act. Relevantly to this proceeding, a person has a substantial criminal record where they have been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c) of the Act.

11    An application may be made to the AAT to review a decision of a delegate to the Minister under s 501: s 500(1)(b) of the Act. Should the AAT decide not to cancel a visa, the Minister may, in certain circumstances, set that decision aside and cancel the visa himself: s 501A(2) of the Act. Those circumstances are where:

(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.

12    Where such a decision is made, the Minister must provide a written notice that sets out the decision, specifies the provision under which the decision was made as well as the effect of that provision, and sets out the reasons for the decision, save for non-disclosable information: see s 501G(1) of the Act.

13    The jurisdiction of this Court to review such decisions arises from s 476A(1)(c) of the Act, which relevantly confers original jurisdiction upon the Court in respect of privative clause decisions, or purported privative clause decisions, made by the Minister under s 501A. Such jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution: see s 476A(2) of the Act. The result of these provisions is that decisions of the Minister under s 501A of the Act are only subject to judicial review on the ground of jurisdictional error.

GROUNDS OF APPLICATION

Ground 1: Did the Minister use the power vested in him under s 501A(2) of the Act for an improper purpose?

14    Following the decision of this Court made on 23 March 2012 to quash the Minister’s decision to cancel the applicant’s visa, a letter was forwarded on behalf of the Minister from the Department of Immigration and Citizenship (‘the Department’) which stated, inter alia, as follows:

The Minister for Immigration & Citizenship intends to again consider whether to set-aside the decision of the Federal Court and to cancel your visa under subsection 501A(2).

15    The applicant submits that at no time was he advised that the intention of the Minister was other than to set aside the decision in the Federal Court. As a result, the applicant submits that the procedure embarked upon by the Minister is flawed and was carried out for an improper purpose given that the Minister has no power to set aside a decision of the Federal Court.

16    The Minister acknowledges that the statement of intention to set aside a decision of the Federal Court is erroneous. However, the Minister submits that such defect was subsequently rectified in subsequent correspondence with the applicant which corrected the error. Such further correspondence is now set out.

17    On 4 October 2012 a solicitor acting as the migration agent for the applicant wrote to the Department advising them of the mistake in their letter. He stated:

If the Minister intends to used [sic] his power under s 501A(2) of the Act can you please provide us with a proper “Notice of Intention”.

18    In response by letter dated 16 November 2012 the Department informed the applicant’s solicitor that s 501A(2) was the correct power being relied upon. Such letter also stated inter alia:

The department accepts that the correct terminology regarding 501A(2) pertains to an ‘original decision’ of the delegate of the AAT rather than to ‘set-aside’ the decision of the Federal Court.

19    No further correspondence took place concerning the subject matter of the erroneous reference of the Department’s letter.

20    The Court notes that even in the Department’s letter dated 16 November 2012, there appears to be a further error. After the reference to the ‘original decision’ it should have stated ‘… of the delegate or of the AAT’ (emphasis added).

21    Nothing of substance turns on such mistakes for the following reasons.

22    Section 501A(2) was clearly relied upon by the Minister as was stated in the ‘statement of reasons for cancellation of visa by a Minister under s 501A(2) of the Migration Act 1958’ which was provided both to the applicant and to his solicitor on or about 12 December 2012. Such statement contained the finding of the Minister that the applicant did not pass the character test as defined by s 501(6) of the Act, and that the applicant had not satisfied the Minister that he passed such test. In reaching his decision, the Minister followed precisely the requirements of s 501A(2). The statement also refers to the fact that on 21 April 2011 the Minister’s delegate decided to cancel the applicant’s visa under s 501(2); that on 12 July 2011 the AAT set aside such decision and remitted the matter to the Department with a direction that the discretion to cancel the applicant’s visa under s 501(2) of the Act not be exercised; that on 5 September 2011 the Minister decided to set aside the decision of the AAT and to cancel the applicant’s visa under s 501A(2) of the Act; and that on 23 March 2012 the Federal Court held that jurisdictional error existed in such decision due to the Minister’s failure to properly consider the best interests of the applicant’s children.

23    As a result of these events the Minister was empowered to re-exercise the powers provided to him by s 501A(2); namely to set aside the decision of the AAT not to cancel the applicant’s visa, and to cancel the applicant’s visa.

24    The applicant also submitted that once the AAT decision was set aside by the Minister, then the original decision of his delegate, which was the subject of the successful application to the AAT, was revived. Such submission was puzzling because if correct, it would have the consequence that there would have been no need for a further review by the Minister given that the delegate had cancelled the applicant’s visa. Regardless, the submission misconceives the legal effect of the relevant decisions in the history of this matter so far for the following reasons.

25    In setting aside the decision of the AAT on 5 September 2011, the Minister rendered the orders of the AAT of no legal effect. This action however did not reinstate the delegate’s decision, thereby resulting in the cancellation of the applicant’s visa. For the visa to again be cancelled, a further decision was required to be made. This is reflected in the words of s 501A(2) of the Act, which relevantly states (emphasis added):

(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…

26    In other words, should the Minister choose to exercise the power conferred upon him to set aside a decision of a delegate or the AAT, he must also either refuse to grant, or cancel, a visa as is appropriate in the circumstances.

27    Quite differently, the effect of Jagot J’s decision on 23 March 2012 was to quash the Minister’s decision of 5 September 2011, rendering it a decision void ab initio: see Wattmaster Alco Pty Ltd v Button (1986) 13 FCR 253 at 256. As such, the decision of the AAT again became the operative decision, with the applicant’s visa not cancelled. Following the decision of Jagot J, it was open to the Minister to again exercise the powers afforded to him under s 501A(2) of the Act. This was noted by her Honour at [28] of her decision.

28    For the above reasons, the Court dismisses the first ground of the application.

Ground 2: Failure to take into account relevant material

29    The applicant submits that in the Minister’s statement of reasons under the heading ‘International Obligations’, the Minister erred by failing to consider obligations owed to the applicant under the International Covenant on Civil and Political Rights (‘ICCPR’) and the Universal Declaration of Human Rights (‘UDHR’). Expanding upon this submission orally, the applicant directed the Court to the references to the obligations under the ICCPR and the UDHR contained in the document entitled ‘International Obligations and Humanitarian Concerns Assessment’ (‘international obligations document’). Such document was before the Minister when making his decision.

30    The applicant’s reference to the international obligations document is however misplaced. As Jagot J explained in the prior decision at [25], insofar as the international obligations document refers to substantive considerations, the source of the obligation to consider that matter is not the document but the entry into force of the conventions. In and of itself, the international obligations document cannot give rise to any legitimate expectation on the part of the applicant since it is merely an aid to assist the Minister.

31    The appellant also referred to provisions of the ICCPR and the UDHR. Article 17 of the ICCPR, which is the same in part as article 12 of the UDHR, states that ‘no-one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation’. Article 23(1) of the ICCPR, which is the same as article 16(3) of the UDHR, provides that ‘the family is the natural and fundamental group unit of society and is entitled to protection by society and the State’. The references to the UDHR do not raise any separate consideration to that raised by the ICCPR. As such, only the ICCPR will be referred to in this decision.

32    Properly construed the applicant asserts that he had a legitimate expectation that the Minister would act in conformity with the ICCPR to ensure that the appellant’s family was not arbitrarily interfered with, in circumstances where his family was entitled to protection by society and the State.

33    An almost identical submission was put before this Court in the decision of Amohanga v Minister for Immigration and Citizenship [2013] FCA 31. In that matter, Edmonds J considered the broad proposition of that, on the basis of the High Court decision of Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, ‘Australia being a signatory to any international convention raises a legitimate expectation that a decision-maker will act consistently with that convention.’ His Honour rejected such claim, and accepted the Minister’s submissions, saying at [36]:

The Minister submitted that the High Court in Lam gave a clear indication that it disapproved or doubted significant aspects of the decision and reasoning in Teoh: at [12] per Gleeson CJ; at [28]–[34] per McHugh and Gummow JJ; at [38] per Hayne J; at [47] and [48] per Callinan J. According to the Minister, it is apparent that the High Court now considers that “the phrase ‘legitimate expectation’ when used in the field of public law either adds nothing or poses more questions than it answers and thus is an unfortunate expression which should be disregarded”: at [65] per Gummow, Hayne, Crennan and Bell JJ in Plaintiff S10. Given this, the Minister submitted that Teoh should be read narrowly, consistent with its ratio, and not as authority for any broader proposition of the sort that would support a finding that, in the circumstances of this case, the applicant had a legitimate expectation in respect of the ICCPR (although, on the authority of Teoh, the Minister accepted that the applicant did have such an expectation in relation to the UNCROC).

34    The Court respectfully adopts the reasoning of Edmonds J. Accordingly, this Court does not consider itself to be bound by Teoh with respect to claims made with regard to obligations said to arise under the ICCPR. Nonetheless, to succeed on this ground of the application, the applicant must establish that Australia’s ratification of the ICCPR gave rise to the applicant having a legitimate expectation that the Minister would act consistently with the provisions of such convention. It follows that the applicant must also show that the Minister did not act in accordance with such expectation.

35    This ground of the application must be rejected. First, it is not enough that the Minister did not refer to consideration of the ICCPR; the Minister’s decision must be shown to be inconsistent with the ICCPR: Amohanga at [39]. In the present application, the applicant did not put his argument higher than that any consideration by the Minister of the ICCPR was not reflected in his reasons.

36    There is however an overriding fact that negatives the applicant’s submission, namely there is no inconsistency between the Minister’s decision and the relevant provisions of the ICCPR. Article 17 of the ICCPR concerns only arbitrary or unlawful interference. On this point, the reasons of Edmonds J in Amohanga are again apposite. His Honour stated at [40(1)]:

The consideration of the applicant’s visa involved a determination according to law in which a number of factors, including the effect on the applicant’s family and personal circumstances, were considered. In my view, it is clear that the process of cancellation and the hearing before the Tribunal could not, on any meaning of the word, be described as arbitrary: Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 248 per Ryan J at [45]; Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 143 per Sundberg, Marshall and North JJ at [35] and [36].

37    The same reasoning applies to a decision made by the Minister pursuant to s 501A(2).

38    Further, the Minister gave sufficient consideration to matters raised under article 23 of the ICCPR. The Minister considered the impact on the applicant’s children if the applicant were returned to his home country; the issue of separation between the applicant and the children; the means of support for the children in Australia; and the applicant’s relationship with three women, including to his current partner, with whom he has fathered children.

39    For the above reasons the Court rejects the submission that there was a failure to take into account relevant material.

Ground 3: Breach of statutory duty

40    The applicant submits that the respondent has a duty to exercise the discretion in s 501A(2) of the Act and that by virtue of the Minister’s finding, the discretion contained in such section effectively has been negatived. Such claim arises in view of a statement contained in one paragraph of the Minister’s statement of reasons in which the Minister stated, inter alia, ‘I found I could not be satisfied that there was no risk that he would re-offend’.

41    The applicant submits that such statement sets a test for one who fails a character test and requires such a person to satisfy the Minister that there was no risk of reoffending in order that the Minister might exercise discretion in such person’s favour. For the reasons described hereunder, such submission must be rejected.

42    The statement of reasons contains discussion of the applicant’s circumstances under the heading of ‘discretion’. Included in such discussion is the reference to the primary consideration of the protection of the Australian community. Also considered was the risk to the community of repetition of the conduct which resulted in the applicant’s conviction for the criminal offence. Under this subject matter the Minister referred to the absence of the applicant’s prior convictions, other than minor offences, and on the issue of the risk of recidivism also had regard to the sentencing judge’s comments, the character references provided from friends and family, and especially the reference provided by the prison chaplain who had attested to the applicant’s remorse and efforts to improve lifestyle. Also considered was the fact that the applicant had been the subject of four incidents of misconduct including intimidation and the possession or creation of prohibited goods. At [17] of the statement of reasons the Minister observed:

If Mr NWEKE were to commit further offending of this nature, I considered the risk of harm to the community would be significant. Drug use has become an entrenched social problem and its use has a destructive effect on those individuals who use it, on their families and it has far reaching ramifications for Australian society. As such, any risk that Mr NWEKE could re-offend, however low, would pose a significant risk to the welfare of the Australian community.

43    The Minister also had before him the decision of the sentencing remarks of Judge Ainslie-Wallace delivered on 9 March 2007 when the applicant was sentenced in the District Court of New South Wales, Criminal Jurisdiction, for his criminal offence. Her Honour observed in such judgment:

It is difficult to comment on the prospects of rehabilitation in a person who maintains his innocence however that is not to say that the offender is without prospects it is impossible however to make any reasoned assessment of his prospects of rehabilitation.

44    It is against this background that the Minister made the statement relied upon by the applicant in support of this ground. However to isolate the statement relied upon from the remainder of the paragraph does not portray the whole of the Minister’s consideration. That is only revealed when the context in which such statement is made is considered, which is:

While I noted Mr NWEKE’s progress in jail, his prospects of rehabilitation and that he is currently in the community, I found I could not be satisfied that there was no risk that he would re-offend. Drug related offending has serious consequences on society and 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 these risks outweighed the best interests of his four children and any other countervailing considerations.

45    It should be observed that the same submission had been made to Jagot J in the prior decision. Her Honour rejected such argument holding at [27], inter alia:

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.

46    The Court agrees with her Honour’s conclusion and, with reference to the reasons already stated above, the Court rejects this ground of the application.

Ground 4: Speculation

47    The applicant refers to the Minister’s statement of reasons at [17], as referred to at [42] of this decision. The applicant submits that the Minister was required to base a decision on reasonably probative evidence and that instead the Minister relied on speculation. The applicant argued that such speculation was evident in the sentence ‘If Mr Nweke were to commit further offences of this nature’ at [17] of the Minister’s statement of reasons. This is contrary, it was submitted, to the previous findings of the AAT which found that Mr Nweke had excellent prospects for a full rehabilitation and of not reoffending, and to the reference provided by the prison chaplain, Father Peter Carroll.

48    The applicant has referred the Court to the decision in Minister for Immigration and Ethnic Affairs v Pochi (1979) 44 FLR 41 and particularly to the passages extracted from the decision of Deane J at 48, 62 and 65. In particular reference is made at 65 to the following observation, where his Honour said:

In particular, I consider that the approach adopted by the United States Supreme Court that the fundamental standards of fairness which are inherent in the concept of procedural due process extend, at least when issues of the gravity of deportation of an established resident are concerned, to exclude a decision on the basis of suspicion and speculation, is of relevance and assistance in the determination of what are the requirements of natural justice when a decision involving issues of such gravity is under review before the Tribunal.

49    The applicant submits that the only reasonable probative evidence indicated that the applicant had a very low chance of reoffending, based upon the findings of the AAT and the excellent prospects given for rehabilitation referred to by the prison chaplain.

50    Such submission is virtually a challenge to the merits of the decision. However, leaving that consideration aside, it is apparent that that the passage relied upon by the applicant as constituting speculation must be read in the context of the Minister’s statement of reasons for the cancellation of the visa. In the paragraphs preceding the statement referred to there is a consideration of the applicant’s absence of prior convictions and the information in the character references, including the references of the prison chaplain, with those factors compared to incidents of misconduct of intimidation and the possession or creation of prohibitive goods, as well as the judge’s sentencing remarks. Only when those matters are taken into consideration is it apparent that the statement relied upon as constituting speculation was not an arbitrary, irrational or unreasonable statement. Rather it was a conclusion drawn after weighing up the matters both in favour of, and against, the prospect of the applicant being successfully rehabilitated. In these circumstances, the statement is not speculation but rather a conclusion. It is distinguishable from the considerations referred to by Deane J in Pochi, in which the relevant decision was found to have been infected by speculation. At 62 in Pochi Deane J said:

In my view, the Tribunal was bound, as a matter of law, to act on the basis that any conduct alleged against Mr. Pochi which was relied upon as a basis for sustaining the deportation order should be established, on the balance of probability, to its satisfaction by some rationally probative evidence and not merely raised before it as a matter of suspicion or speculation or left, on the material before it, in the situation where the Tribunal considered that, while the conduct may have occurred, it was unable to conclude that it was more likely than not that it had.

51    In view of the careful deliberation by the Minister in his statement of reasons, the circumstances referred to by Deane J above are quite different to the circumstances under consideration here. The Court is unable to find any element of speculation, in the sense of unreasoned or arbitrary decision making as claimed, and accordingly dismisses this ground of the application.

Ground 5: Denial of procedural fairness

52    The applicant submits that he was denied procedural fairness. The denial is said to arise because he was not provided with a chance to make submissions in respect of his potential future drug use in view of the finding of the Minister that drug use ‘has far reaching ramifications for Australian society’. It appears that the submission arises from the principle that a decision-maker must ‘identify to the person affected [by the decision] any issue critical to the decision which is not apparent from its nature or from the terms of the statute under which it is made’: see Commissioner of ACT Revenue v Alphaone Pty Ltd (2004) 49 FCR 576 at 592.

53    The Minister expressed concern in his statement of reasons at [17] of the ‘far reaching ramifications for Australian society’ of drug use. It must have been obvious to the applicant that the question of drug use was a critical matter for consideration by the Minister in his determination to cancel the visa. The applicant had a solicitor acting for him in the proceedings as his migration agent. The solicitor had provided submissions in respect of the Minister’s intention to again consider the cancellation of the visa. Those submissions were contained in the solicitor’s letter dated 16 October 2012. It is correct that the risk of recidivism was not directly put to the applicant, but as the applicant must have well known, the possible cancellation was based upon his conviction arising out of drug importation and that the potential risk to the Australian community was a primary consideration. If the applicant did not pass the character test because of his conviction, it followed that it was for the Minister to decide whether it would be in the national interest to cancel his visa. This would necessarily involve the primary consideration of the protection of the Australian community, especially from drug use. The Court rejects this submission.

54    As a separate submission, the applicant also argued that at no stage was he advised of the elements of national interest which the Minister would take into consideration, and in particular the applicant was not advised that the Minister would take into account the interests of the applicant’s children as a primary consideration.

55    Submissions to the same effect were put before Jagot J in the prior decision. Her Honour rejected such argument, stating at [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.

56    The Court respectfully adopts her Honour’s observations. Accordingly this ground must be rejected.

57    The application is dismissed with costs.

Associate:

Dated:    17 May 2013