FEDERAL COURT OF AUSTRALIA

Williams v Minister for Immigration and Citizenship [2013] FCA 702

THE COURT ORDERS THAT:

1.    A writ of certiorari issue to the second respondent quashing its decision dated 16 January 2013.

2.    A writ of mandamus issue to the second respondent requiring it to consider and determine the applicant’s application according to law.

3.    The first respondent pay the applicant’s costs of and incidental to this application.

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

REASONS FOR JUDGMENT

introduction

1    The applicant, Mr Marouna Williams, applies to the Court under s 476A(1)(b) and (2) of the Migration Act 1958 (Cth) (the Act) for review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 16 January 2013.

2    The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Citizenship, to cancel the applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

relevant legislative provisions

The Migration Act

3    The Minister is empowered to cancel a person’s visa if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that they do pass the character test (s 501(2)). So far as is relevant to this application, a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more (ss 501(6)(a) and (7)(c)). It was not in dispute that the applicant failed the character test because he had been sentenced to a term of imprisonment of more than 12 months. Where a person fails the character test the Minister nonetheless retains a discretion whether to cancel the visa or not. This application concerns the exercise of that discretion.

4    The Minister may give written directions to a person or body exercising power under the Act about the exercise of that power (s 499(1)). A person or body must comply with such a direction (s 499(2A)).

5    On 28 July 2012, the Minister made Direction No. 55 under s 499(1) of the Act. The Direction governed, among other things, the exercise of the discretion under s 501 to cancel a visa. The Direction commenced operation on 1 September 2012 and hence governed the decision of the Tribunal made on 16 January 2013.

6    Several of the grounds of the application allege that the Tribunal made a jurisdictional error by failing to comply with the requirements of the Direction. In order to deal with those grounds it is necessary to refer to relevant parts of the Direction which relate to the exercise of the discretion to cancel a visa, and which were applicable to the circumstances of this case.

Direction No. 55

7    6.2 General Guidance

(1)     The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

…

(3)     The principles provide a framework within which decision-makers should approach their task of deciding whether to … cancel a non-citizens visa under section 501. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A … of this Direction.

6.3 Principles

(1)     Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2)     A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(3)     In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(4)     Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

(5)     Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

(6)     The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa … cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled… .

Section 2    Exercising the Discretion

7.     How to exercise the discretion

(1)     Informed by the principles in paragraph 6.3 above, a decision-maker:

a)     must take into account the considerations in Part A … where relevant, in order to determine whether a non-citizen will forfeit the privilege … of continuing to hold, a visa; and

b)     is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.

8.    Taking the relevant considerations into account

…    

(3)     Both primary and other considerations may weigh in favour of, or against … cancellation of the visa.

(4)     Primary considerations should generally be given greater weight than the other considerations.

(5)     One or more primary considerations may outweigh other primary considerations.

PART A

9.     Primary considerations -- visa holders

(1)     In deciding whether to cancel a person's visa, the following are primary considerations:

a)     Protection of the Australian community from criminal or other serious conduct;

b)     The strength, duration and nature of the person's ties to Australia;

c)     The best interests of minor children in Australia;

d)     Whether Australia has international non-refoulement obligations to the person.

9.1     Protection of the Australian community

(1)     When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

(2)     Decision-makers should also give consideration to:

a)     The nature and seriousness of the person's conduct to date; and

b)     The risk to the Australian community should the person commit further offences or engage in other serious conduct.

9.1.1     The nature and seriousness of the conduct

(1)     In considering the nature and seriousness of the person's criminal offending or other conduct to date, decision-makers must have regard to factors including:

a)     The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

b)     The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

c)     Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; or after the person escaped from immigration detention, but before the person was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

d)     The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s 501(6)(b) or (d), or is not of good character under s 501(6)(c), is considered to be serious;

e)     The sentence imposed by the courts for a crime or crimes;

f)     The frequency of the person's offending and whether there is any trend of increasing seriousness;

g)     The cumulative effect of repeated offending;

h)     Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

i)     Whether the person has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the person's migration status (noting that the absence of a warning should not be considered to be in the person's favour);

j)     Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

9.1.2     The risk to the Australian community should the person commit further offences or engage in other serious conduct

(1)     In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In making this assessment, decision-makers must have regard to, cumulatively:

a)     The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and

b)     The likelihood of the person engaging in further criminal or other serious conduct, taking into ac-count:

i.     information and evidence on the risk of the person re-offending; and

ii.     evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

9.2     Strength, duration and nature of the person's ties to Australia

(1)     Reflecting the principles at 6.3, decision-makers must have regard to:

a)     How long the person has resided in Australia, including whether the person arrived as a young child, noting that:

i.     Less weight should be given where the person began offending soon after arriving in Australia; and

ii.     More weight should be given to time the person has spent contributing positively to the Australian community.

b)     The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

…

10.    Other consideration -- visa holders

(1)     In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

a)     Effect of cancellation of the person's visa on the person's immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;

b)     Impact on Australian business interests;

c)     Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person's criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;

d)     The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

i.     The person's age and health;

ii.     Whether there are substantial language or cultural barriers; and

iii.    Any social, medical and/or economic support available to them in that country.

(Emphasis added.)

The tribunal decision

8    The Tribunal recorded that the applicant was born in 1989. He is a citizen of New Zealand. He arrived in Australia on 11 December 1998 with his family after spending his early childhood in the Cook Islands.

9    Then, the Tribunal referred to the legislative provisions relevant to the application. In relation to Direction No. 55 the Tribunal recorded:

6.    Paragraph 7 of Direction 55 sets out how to exercise the discretion and paragraph 8 requires decision-makers to take into account the primary and other considerations relevant to the individual case. Paragraph 8(4) of Direction 55 states that primary considerations should generally be given greater weight than the other considerations.

10    Next, the Tribunal stated that:

7.    The issues before the Tribunal are:

•    Does Mr Williams pass the character test? If not:

•    How do the primary considerations and other considerations apply to Mr Williams?

•    Should the discretion to cancel the visa be exercised?

The Tribunal addressed each of those issues in turn.

11    On the first issue, the Tribunal set out the applicant’s criminal history. Most relevant to the present application were the court appearances on 16 August 2011 and 14 December 2011 which the Tribunal recorded as follows:

12    It is sufficient for present purposes to state in summary form the applicant’s criminal history prior to the appearance on 16 August 2011, although the Tribunal set out this information more fully.

13    The applicant appeared in the Heidelberg Children’s Court on 25 June 2004 charged with theft, burglary and driving offences. No conviction was recorded. He was placed on probation for four months and ordered to pay compensation of $250.

14    On 7 February 2005, the applicant appeared in the Melbourne Children’s Court on a charge of recklessly causing serious injury. No conviction was recorded. The case was adjourned on a bond of $250 to be of good behaviour for 12 months. The applicant was ordered to pay $250 to the Court fund.

15    On 27 April 2006, the applicant appeared in the Melbourne Children’s Court charged with affray, intentionally causing serious injury and recklessly causing serious injury. He was convicted on all charges and sentenced to detention for six months in a youth training centre.

16    On 5 March 2007, the applicant appeared in the Melbourne Children’s Court charged with intentionally causing injury and stating a false name when requested. No conviction was recorded and the applicant was placed on probation for six months.

17    On 25 January 2008, the applicant appeared in the Heidelberg Children’s Court charged with possessing and consuming liquor as a person under 18 years and resisting police. No conviction was recorded and the applicant was fined $300.

18    On 1 December 2008, the applicant appeared in the Heidelberg Magistrates’ Court on driving offences. No conviction was recorded. He was placed on a community based order to perform 50 hours of service and was disqualified from obtaining a driving licence for 13 months.

19    As a result of this criminal history the Tribunal concluded, and it was conceded, that the applicant did not pass the character test.

20    The Tribunal then addressed the next question it had posed for itself, namely, “How do the primary considerations and other considerations apply to Mr Williams?” The Tribunal followed the structure of Direction No. 55 and addressed each of the four primary considerations.

21    In relation to the first primary consideration, namely, the protection of the Australian community from criminal or other serious conduct, the Tribunal considered each of the factors relevant to the nature and seriousness of the conduct specified in [9.1.1] of the Direction. So far as is relevant to the present application the Tribunal said:

a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously.

14.    In his sentencing remarks in the County Court of Victoria on 16 August 2011 the judge noted that in October 2008 Mr Williams, an older brother and two cousins had been drinking when Mr Williams punched one of the victims through a car window for no apparent reason. He violently assaulted another stranger in the street, leaving the victim terrified and seriously injured. He also entered the house belonging to another of the victims with the intention of stealing items from the house. The judge described the offences as …serious and, in particular, the intentionally causing serious injury, in my view, is a very serious example of it. The judge said that one of the assaults was …absolutely gratuitous on a totally defenceless person…The judge referred to prior convictions involving violence and causing serious injury, resulting in a sentence of six months in a Youth Training Centre. The judge took into account a plea of guilty on all charges and noted that Mr Williams had reduced his alcohol consumption, had a stable employment record and had not re-offended for three years (although in fact Mr Williams had committed further offences in April 2010).

(Original italics.)

15.    Mr Williams told the Tribunal that the offences occurred while he was intoxicated. He admitted that the injuries he inflicted were serious and two of the victims had lost consciousness. He had kicked one of the victims who was lying on the ground, breaking the person’s jaw in three places.

16.    The judge’s remarks were made before Mr Williams appeared in the Heidelberg Magistrates’ Court on 14 December 2011 on a number of charges including traffic and driving matters, theft, burglary, breach of a Community-Based Order and failure to answer bail. He was sentenced to 27 months’ imprisonment, to be served concurrently with the sentence imposed in the County Court. He was released from prison on 12 November 2012 and was placed in immigration detention when his visa was cancelled.

(Emphasis added.)

…

e) The sentence imposed by the courts for a crime or crime[s];

20.    In respect of the most serious offences Mr Williams was sentenced on 16 August 2011 to imprisonment for 43 months with a minimum of 15 months.

f) The frequency of the person's offending and whether there is any trend of increasing seriousness;

21.    Mr Williams commenced offending at the age of 14 years, which was about five years after his arrival in Australia, and he appeared in Court in each of the following four years on a range of charges including violence, driving offences and theft.

    (Original italics.)

22    The Tribunal then concluded at [26] “that the offences are very serious”.

23    The Tribunal next considered the risk to the Australian community should the applicant commit further offences or engage in other serious conduct. That is the factor which must be considered under [9.1.2] of the Direction as part of the first primary consideration. The Tribunal referred to various reports which assessed the applicant’s risk of reoffending, and the Tribunal also referred to the evidence of family members relevant to the question. The Tribunal concluded:

48.    On the basis of all the material, the Tribunal finds that Mr Williams's risk of re-offending is at least moderate. This, together with the finding that the offences and the nature of his conduct are extremely serious, leads the Tribunal to conclude that the first primary consideration weighs strongly in favour of cancellation of the visa.

24    The Tribunal then considered the second primary consideration, namely, the strength, duration and nature of the applicant’s ties to Australia. This is the factor which must be considered under [9.2] of the Direction. The Tribunal said:

49.    Paragraph 9.2.1 [sic] of Direction 55 states that the decision-maker must have regard to the following:

a)    How long the person has resided in Australia, including whether the person arrived as a young child, noting that:

i. Less weight should be given where the person began offending soon after arriving in Australia; and

ii. More weight should be given to time the person has spent contributing positively to the Australian community

        (Original italics.)

50.    Mr Williams was born in New Zealand and at the age of two he moved with his parents to the Cook Islands until he arrived in Australia at the age of nine years and has resided here since then. He commenced offending about four years after his arrival and has continued to re-offend until 2010.

b) The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

51.    Ms Taruia is an Australian citizen. Mr William’s [sic] parents are Australian citizens who currently live in New Zealand with his youngest sibling. The other four siblings live in Australia and (apart from Mr J Williams) are located in Queensland, Western Australia and rural Victoria. Extended family members live in Australia.

52.    Mr S Jackson told the Tribunal that he has known Mr Williams and worked with him for two years as his foreman at a concrete construction company. He said that Mr Williams has been an asset to the company and has shown a positive work ethic and has the potential to lead his own team. Mr Jackson said that Mr Williams would be welcome to return to the company. Mr M Shehata stated that he has known Mr Williams for 12 years, and described him as a loving and caring person who has developed into a young man with high integrity and is a respectful, honest and caring person. Ms T Rexter stated that she and her family regard Mr Williams and his family as their own extended family. She said that Mr Williams has grown into … a nice young man, always respectful, courteous, considerate and willing to help.

53.    The Tribunal takes into account that Mr Williams has spent part of his childhood and his formative years in this country and began offending some four years after arriving in Australia. He has been largely in full-time employment since 2004 as a machine operator, spray painting apprentice and concreter. He is highly regarded by his most recent employer.

54.    The Tribunal concludes that Mr Williams has close ties to Australia, having lived here for 13 years, having a partner for almost three years, regular employment, plus the presence of four siblings and extended family in Australia.

    (Original italics.)

25    The Tribunal concluded in relation to the second primary consideration:

55.    In all the circumstances this primary consideration weighs against cancellation of the visa.

26    The Tribunal considered several other matters not presently relevant. Following that discussion, and at the end of the decision, the Tribunal addressed some other considerations as required by [10] of the Direction. In the course of that deliberation the Tribunal stated:

c) Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;

(Original italics.)

63.    A decision not to cancel Mr Williams's visa may have an adverse impact on members of the Australian community, including victims of his criminal behaviour and family members of victims, who might fear that Mr Williams would re-offend.

    (Emphasis added.)

27    At [66] the Tribunal concluded in relation to the other considerations:

Although his parents live in New Zealand and he would be able to establish himself and find employment there, Mr Williams, his siblings and partner in Australia would suffer some hardship if he is removed. The Tribunal concludes that the other considerations weigh against cancellation of the visa.

(Emphasis added.)

28    Lastly, the Tribunal addressed the final issue which it posed for itself initially, namely, “Should the discretion to cancel the visa be exercised?” The Tribunal said:

67.    The Tribunal has concluded that the first primary consideration concerning protection of the Australian community weighs strongly in favour of cancellation, and the second primary consideration concerning Mr Williams’s ties to Australia weighs against cancellation. The third and fourth primary considerations do not have any practical application.

68.    The Tribunal has concluded that the other (not primary) considerations weigh against cancellation, and the Tribunal takes into account that, generally, other considerations should be given less weight than that given to primary considerations.

69.    After considering all the circumstances of the primary considerations and the other considerations the Tribunal finds, particularly in respect of the seriousness of the offences, the nature of Mr Williams’s offending history and the risk of re-offending, that the factors in favour of cancellation of the visa outweigh the factors against cancellation, so the discretion to cancel the visa should be exercised.

29    Each of the grounds of the application will now be addressed:

Ground 1 – failure to undertake the required balancing exercise

The applicant’s argument

30    Mr Hughan, who appeared as counsel for the applicant, contended that the Tribunal failed to comply with the requirement of [7(1)(b)] of the Direction. The Direction requires the Tribunal to determine whether the risk of future harm by a non-citizen is unacceptable. The Direction states that this requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community. The Tribunal, so it was contended, did not engage in that balancing exercise. Rather, the Tribunal undertook a different balancing exercise in [67] to [69] which are extracted at [28] of these reasons. There the Tribunal balanced the considerations in favour of cancellation against the considerations against cancellation.

31    By approaching the determination in that way and failing to undertake the procedure required by [7(1)(b)] the Tribunal identified a wrong issue or asked itself the wrong question in a way that affected the exercise of power. The Tribunal thereby made a jurisdictional error. Counsel for the applicant suggested that the approach taken by the Tribunal reflected the approach required by the form of the Direction before the recent publication of the present version of the Direction.

32    Counsel for the applicant said that the Tribunal set out the issues which it had to determine at [7] which is extracted at [10] of these reasons. The issues were not described in a way which reflected the question to be determined under [7(1)(b)] of the Direction. Further, the only reference made to [7] of the Direction by the Tribunal occurred in the opening words at [6] of the decision of the Tribunal extracted at [9] of these reasons. These matters demonstrated that the Tribunal did not follow the requirements of [7(1)(b)] of the Direction.

33    Then, centrally, the failure of the Tribunal to address the issues required by [7(1)(b)] of the Direction is seen in its reasoning process. Counsel for the applicant accepted that the Tribunal took into account the likelihood of any future harm and the extent of the potential harm should it occur. These factors involve considerations to be taken into account under factors specified in [9.1.2(1)(a) and (b)] of the Direction in the process of addressing the first primary consideration. The Tribunal did not separately refer to the question whether the risk of harm should be tolerated by the Australian community which is the final factor to be placed in the balance under [7(1)(b)] of the Direction.

34    In any event, the process adopted by the Tribunal in [67] – [69] was to balance the considerations against each other but not to address the question of the extent to which, if at all, any risk of future harm should be tolerated by the Australian community. The required balancing exercise was not undertaken either expressly or by implication from a fair reading of the reasons of the Tribunal as a whole.

The Minister’s argument

35    Mr Knowles, who appeared as counsel for the Minister, contended that the Tribunal performed the balancing exercise required by [7(1)(b)] of the Direction. He accepted that the Tribunal did not expressly state the question to be determined in the terms stated in [7(1)(b)] of the Direction, namely, whether the risk of future harm by the applicant is unacceptable.

36    Counsel for the Minister contended that the reference to [7] of the Direction by the Tribunal in [6] of its reasons demonstrated that it was aware of the requirement to engage in the balancing exercise directed to that question. By addressing the primary considerations and the other considerations and balancing those considerations against each other the Tribunal, so it was contended, complied with [7(1)(b)] of the Direction. That happened because by addressing each of the factors which the Direction required to be addressed, the Tribunal necessarily attended to the question posed under [7(1)(b)]. Counsel for the Minister argued that there were overlaps in the provisions of the Direction which operated so that if the primary considerations and the other considerations were addressed in the way required by the other provisions of the Direction, the requirements of [7(1)(b)] would necessarily be addressed.

37    Thus, the likelihood of any future harm, which is one of the matters to be placed in the balance under [7(1)(b)] of the Direction, will have been addressed under [9.1.2(1)(b)] of the Direction as part of taking into account the first primary consideration. Also, the extent of potential harm should it occur, which is another matter to be placed in the balance under [7(1)(b)] of the Direction, will have been addressed under [9.1.2.(1)(a)] as part of the application of the first primary consideration. Hence, by addressing the stipulated considerations, the Tribunal necessarily attended to the question required to be addressed by [7(1)(b)].

38    In support of this argument counsel for the Minister referred to the role of the principles contained in [6.3] of the Direction. They provide an interlocking scheme which has the result that if the Tribunal follows the other requirements of the Direction then the requirements of [7(1)(b)] will have been met. The starting point which demonstrates the interlocking nature of the provisions is in the General Guidance provided in [6.2(1)] of the Direction where it is stated:

The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

39    Then [6.2(3)] which sets out the Principles states that:

The principles provide a framework within which decision-makers should approach their task of deciding whether to … cancel a non-citizens visa under section 501.

40    The principles themselves in [6.3(3) and (4)] directly address the question of whether future harm is unacceptable and the extent to which the Australia community should be expected to tolerate such harm.

41    Then, the process envisaged by [7] of the Direction is introduced with the phrase “[i]nformed by the principles in paragraph 6.3 above”. Finally, where the Direction sets out the factors to be taken into account in relation to the second primary consideration, namely, the strength, duration and nature of the person’s ties to Australia, it introduces the requirements with the phrase “reflecting the principles at 6.3 …”. The principle which seems to relate to this issue is the principle set out in [6.3(4)].

Consideration

42    The reasoning process which the Tribunal adopted was, first, to address the factors listed in respect of the two primary considerations and the other considerations as stipulated by the Direction. The Tribunal then made a judgment as to whether each of the considerations favoured or told against cancellation of the applicant’s visa. At the end of the process the Tribunal placed those assessments into the balance to determine the question which it had posed for itself, namely, “Should the discretion to cancel the visa be exercised?”

43    This is not however the process contemplated by [7] of the Direction. The question which the Tribunal is required to determine is stated in [7(1)(b)]. That question is “whether the risk of future harm by a non-citizen is unacceptable”. This is a different question than the question whether by balancing the considerations for and against cancellation, the applicant’s visa should be cancelled. It is a narrower question which focuses on a particular reason why the visa should be cancelled. The Tribunal made a passing reference to [7] of the Direction but the relevant question was not asked by the Tribunal. Further, the process of considering and weighing the primary and other considerations does not necessarily produce an answer to the relevant question. It is, of course, not to the point that the Tribunal might have answered the relevant question in the same way as it answered the question which it in fact considered.

44    It was accepted by the first respondent that if the Court determined that the Tribunal had failed to ask the right question it will have made a jurisdictional error and that relief should be granted. This concession was correct. Consequently, the decision of the Tribunal will be quashed and the matter remitted for determination according to law.

45    On the view taken of the operation of [7(1)(b)] of the Direction a question might arise whether the Direction is inconsistent with the Act and hence invalid (s 499(2)) because it fetters the discretion to cancel the visa under s 501(2) by limiting the ground for the exercise of the discretion to circumstances where the risk of future harm by a non-citizen is unacceptable. That argument was not raised and hence this is not the occasion to consider it further.

46    In view of the conclusion on the first ground of the application, it is unnecessary to consider the other grounds. However, for the sake of completeness these grounds will be dealt with briefly.

47    Ground 2 was not pursued by the applicant.

Ground 3 – Error as to the applicant’s criminal record

48    In [16], which is extracted at [21] of these reasons for judgment, the Tribunal stated that the applicant “was sentenced to 27 months’ imprisonment, to be served concurrently with the sentence imposed in the County Court”. The applicant contended that the Tribunal made an error in this statement because the total effective sentence imposed by the Heidelberg Magistrates’ Court to which the statement referred was six months. The longest sentence imposed was six months and all the other sentences were made concurrent with that sentence. Although the total of the sentences imposed added up to about 27 (actually 28) months, the time to be served was six months. This error was made when the Tribunal was addressing the first factor relating to the first primary consideration, namely, the nature and seriousness of the applicant’s conduct. Counsel for the applicant argued that it should be inferred that this error played a role in the Tribunal’s conclusion at [26] that “the offences are very serious” and the consequent conclusion at [48] that the first primary consideration “weighs strongly in favour of cancellation of the visa”.

49    This argument should not be accepted. The Tribunal set out in detail the sentences imposed by the Heidelberg Magistrates’ Court on 14 December 2011 as extracted at [11] of these reasons. That table disclosed accurately that the total of the sentences was close to the 27 months referred to by the Tribunal later in its decision. At the same time the table showed that the time to be served was six months. Importantly, in [16] of the Tribunal’s decision, which is extracted at [21] of these reasons, where the reference to 27 months occurred, the Tribunal was examining the circumstances of the appearance in the County Court on 16 August 2011. The reference to the later appearance in the Heidelberg Magistrates’ Court was made in passing only to record that the sentence imposed by the Heidelberg Magistrates’ Court was to be served concurrently with the sentence imposed by the County Court. Then, in [20] of the Tribunal’s decision, which is extracted at [21] of these reasons, the Tribunal came to deal with the issue of the sentences imposed on the applicant in relation to the Tribunal’s consideration of the first primary consideration. In this instance the Tribunal made no reference to the sentence imposed by the Heidelberg Magistrates’ Court. Rather, it based its assessment of the seriousness of the conduct of the applicant by reference to the sentence imposed by the County Court.

50    The Court conducting judicial review of the Tribunal’s decision does not approach the analysis of the decision with an overly critical eye directed to find error. In view of the Tribunal’s correct recording of the sentence imposed by the Heidelberg Magistrates’ Court in the table referred to earlier, it is probable that the reference to 27 months in [16] of the Tribunal’s decision is a reference to the total of all the sentences imposed by the Heidelberg Magistrates’ Court, and is not a reference to the time which was to be served for those offences. But even if the reference to 27 months was an error, it did not affect the assessment made by the Tribunal of the seriousness of the applicant’s conduct because the only sentence which it took into account for the purpose of that assessment was the sentence imposed by the County Court on 16 August 2011.

51    Consequently Ground 3 of the application should be rejected.

Ground 4 – impact on victims of the applicant’s criminal conduct

52    In [63] the Tribunal said that the decision not to cancel the applicant’s visa may have an adverse impact on the victims of his criminal behaviour and their family members who might fear that the applicant would reoffend.

53    This was the Tribunal’s conclusion on the factor referred to in [10(1)(c)] of the Direction, which the Tribunal was required to address as one of the other considerations. There are two conditions which apply to the application of this factor. First, there must be information available that the decision not to cancel the visa will have an adverse impact on the victim and / or their family members. Second, the person facing visa cancellation must be afforded procedural fairness in relation to the allegation being made.

54    Counsel for the applicant contended that the there was no information available about the impact on the victims or on their families of a decision not to cancel the applicant’s visa. Before the Tribunal the Minister relied on a passage in the sentencing remarks of Judge Smallwood who sentenced the applicant in the County Court on 16 August 2011. The passage read as follows:

Two victim impact statements have been provided, one from Mr Cursio, who was the victim of the common assault. I have read that victim impact statement and take it into account. Also there is a victim impact statement from Mr Giacominato who describes effectively not only what happened to him but his reaction as to what happened to his friend. It has clearly caused Mr Giacominato on-going emotional and physical pain. He is clearly a very unhappy man. I have no doubt that Mr Kecesian is in the same boat.

(Emphasis added.)

55    In its written submissions to the Tribunal the Minister contended:

56.    The victims and their families may be concerned that there would be a risk of repeat offending should the applicant’s visa not be cancelled.

56    The Tribunal concluded that the other considerations weighed against cancellation. The applicant submitted that, nonetheless, the Tribunal’s view about the impact on victims and their families could not be ignored as a factor which may have led the Tribunal to decide in favour of cancellation.

57    Counsel for the Minister argued that the sentencing remarks of Judge Smallwood amounted to information about the impact on the victim or the victim’s family of a decision not to cancel the visa within [10(1)(c)] of the Direction. Counsel for the Minister further argued that even if the Tribunal relied on information which was not relevant, it did not do so in a way that affected the exercise of power. Hence, any such reliance did not constitute a jurisdictional error for which relief would be granted. This contention was based on the fact that the impact on the victim or their family was given only a passing reference and was only one aspect of the assessment of the other considerations. And, importantly, the Tribunal concluded that the other considerations weighed against cancellation. It was the effect of the primary considerations which favoured the cancellation of the applicant’s visa.

58    The applicant’s argument should be accepted. The sentencing remarks of Judge Smallwood said nothing about the victim’s reaction to a decision not to cancel the applicant’s visa. They were directed to the impact of the offences on the victims, not about whether the victim’s or their families were concerned about whether the applicant would remain in Australia. Neither did the sentencing remarks give a basis for an inference about that matter.

59    There was no relevant information within the meaning of [10(1)(c)] of the Direction before the Tribunal on the impact on the victims or their families of the applicant’s criminal conduct.

60    Although the process adopted by the Tribunal seems to have been to have come to a general conclusion concerning each of the considerations and balance those general conclusions against each other, the exercise of balancing necessarily involved taking into account assessments of the individual factors which went to make up the general conclusions. In this way the Tribunal’s view about the impact of the applicant’s criminal conduct on the victims or their families may have added to or confirmed its view of the seriousness of the offending even though the general conclusion relating to the other considerations was against cancellation. In other words, the Tribunal took into account irrelevant information which may have affected its exercise of power. It thereby committed a jurisdictional error and the applicant is also entitled to relief on Ground 4.

Associate:

Dated:    19 July 2013