FEDERAL COURT OF AUSTRALIA

WASB v Minister for Immigration and Citizenship [2013] FCA 1016

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs of the application to be taxed, if not agreed.

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

REASONS FOR JUDGMENT

OVERVIEW

1        The applicant is an Iranian citizen who entered Australia at Christmas Island, an “excised offshore place” within the meaning of s 5 of the Migration Act 1958 (Cth) (Migration Act), without a valid visa on 10 August 2010. The applicant was then placed in immigration detention.

2        On 29 October 2012, the respondent (Minister) exercised his power under s 501(1) of the Migration Act to refuse to grant the applicant a Protection (Class XA) visa (protection visa) on the ground that the applicant did not pass the “character test” as the applicant had been convicted of an offence which was committed while he was in immigration detention.

3        By originating application filed on 10 December 2012 (as amended), the applicant alleges the Minister made various jurisdictional errors in making this decision. In summary, these are that the Minister’s discretion under s 501(1) was not enlivened and that, if the discretion was enlivened, it was not exercised according to law.

4        The Court does not consider that the Minister committed jurisdictional error in making his decision to refuse to grant the applicant a protection visa and so dismisses the application with costs.

APPLICATION FOR A PROTECTION VISA

5        Following his arrival on Christmas Island, on 28 August 2010 the applicant made a request for refugee status assessment. On 12 October 2010, he was found by the Minister’s delegate to be not owed protection as a refugee.

6        On 21 October 2010, the applicant applied for independent merits review of this decision.

7        On 27 January 2012, the independent merits reviewer found the applicant in fact met the criterion for a protection visa as set out in s 36(2) of the Migration Act, and recommended that the applicant be recognised as a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (Convention).

8        Subsequently (in circumstances described further below), on 24 April 2012 the applicant was convicted in the Magistrates Court of Western Australia of the offence of destroying or damaging Commonwealth property, contrary to s 29(1) of the Crimes Act 1914 (Cth) (Crimes Act), by pulling plasterboard from the ceiling of his cell while in detention at the Perth Immigration Detention Centre. This offence was committed on 9 June 2011. The applicant was released by Chief Magistrate Heath on entering into a recognisance in the sum of $1,000 to be of good behaviour for a period of 12 months.

9        As the applicant had entered Australia at Christmas Island, an “excised offshore place”, without a valid visa, the applicant was an “offshore entry person” (as such persons were then termed under the Migration Act) who was precluded from making a valid application for a visa unless the Minister personally made a decision under s 46A(2) of the Migration Act that it was in the public interest that he be permitted to do so. On 26 June 2012, the Minister determined that s 46A(1) of the Migration Act did not apply to a protection visa application made by the applicant. Consequently, the applicant was free to make an application for a protection visa and on or about 6 July 2012 did so.

10        On 29 October 2012, however, the Minister exercised his discretion under s 501(1) of the Migration Act to refuse to grant a protection visa to the applicant, notwithstanding the earlier recommendation of the independent merits reviewer, on the ground that the applicant had not satisfied the Minister that he passed the character test (as defined in s 501(6)). Section 501 relevantly provided:

(1)    The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

…

(6)    For the purposes of this section, a person does not pass the character test if:

…

    (aa)    the person has been convicted of an offence that was committed:

        (i)    while the person was in immigration detention…

11        In his statement of reasons for this decision, the Minister found that the offence for which the applicant was convicted on 24 April 2012 was “serious and the kind of conduct that will not be tolerated while people are in immigration detention” (while noting the applicant’s assertion that his offending was due to stress and he was unlikely to re-offend). Further, although the Minister accepted that the applicant did have a well-founded fear of being persecuted in the foreseeable future if he was returned to Iran and that Australia has a non-refoulement obligation under the Convention to the applicant in respect of Iran, the Minister noted that a decision to refuse the applicant a protection visa is not in itself a decision to remove him from Australia. In concluding, the Minister stated that:

In reaching my decision I have taken the view that engaging in any criminal behaviour while in immigration detention is serious and the Australian community has an expectation that people who seek to remain in Australia will respect Australia’s laws and legal authority, and be of good character.

I considered that the consequences of such behaviour in particular cases should also provide a disincentive to others who may be at risk of engaging in criminal behaviour while in immigration detention.

…

… notwithstanding that [the applicant] is person to whom Australia has protection obligations, his behaviour demonstrated a fundamental disrespect for Australia’s laws, standards and authorities and, consistent with the introduction of s501(6)(aa), that behaviour should attract consequences under the Migration Act.

12        About one month later, on 28 November 2012, the Minister, pursuant to s 195A(2) of the Migration Act, granted the applicant a Bridging (Removal Pending) (Subclass 070) visa (bridging visa) with various conditions. In a letter to the applicant advising him of the grant of the visa, the applicant was also informed that the Minister had indicated that he intended to reconsider the applicant’s circumstances in December 2014.

JUDICIAL REVIEW IN THIS COURT

13        By application filed on 10 December 2012 (as amended), the applicant now seeks judicial review of the Minister’s decision to refuse to grant the applicant a protection visa. As the decision to refuse to grant a protection visa to the applicant was a “privative clause decision” or “purported privative clause decision” made personally by the Minister under s 501 of the Migration Act, the decision is only reviewable by this Court: s 476A(1)(c) of the Migration Act. The jurisdiction of the Court under s 476A(1)(c) to judicially review the decision of the Minister is the same as the jurisdiction of the High Court under s 75(v) of the Constitution: s 476A(2) of the Migration Act. Accordingly, the application can only succeed if the Minister’s decision was tainted by jurisdictional error.

14        The applicant advances the following grounds of review:

(1)    The exercise of discretion under s 501(1) of the Migration Act was not enlivened because:

(a)    the term “offence” in s 501(6)(aa) does not, in the context of an application for a protection visa, include an offence of the type for which the applicant was convicted on 24 April 2012; or

(b)    it was a precondition to the exercise of the discretion that the Minister determine that the risk of future harm to the Australian community by the applicant was unacceptable, and the Minister did not do so.

(2)    Alternatively, the Minister failed to exercise the discretion under s 501(1) of the Migration Act according to law in that the decision to refuse to grant a protection visa to the applicant:

(a)    was so unreasonable that no reasonable decision maker could have made it;

(b)    was not made for the purpose for which the discretion was conferred;

(c)    was an inflexible application of a policy without a proper consideration of all relevant circumstances; or

(d)    was made without taking relevant considerations into account.

15        In support of his application, the applicant seeks to rely upon an affidavit affirmed by him on 4 April 2013. The Minister objects to this affidavit being admitted into evidence on the basis that it does not depose to any facts that are probative of whether a jurisdictional error has been committed. The Minister says that the “court book” filed in the proceeding is the only material relevant to the issue of whether there has been jurisdictional error, being the only material upon which the Minister made the impugned decision.

16        At the hearing of the application I noted that I would admit the affidavit into evidence, subject to a ruling on its admissibility. I further noted that depending on the response I made to the parties’ submissions on the various grounds of review, the material in the affidavit will or will not be relevant. For the reasons which follow it will be apparent that even if the material in the affidavit is considered relevant (and hence admissible pursuant to s 56(1) of the Evidence Act 1995 (Cth)), which may be considered doubtful, no jurisdictional error on the part of the Minister is made out.

17        The relevant facts deposed to in the affidavit (and which are said to support various of the grounds of review) may, then, briefly be stated:

    Following the applicant’s detention after his arrival on Christmas Island, a doctor at the Christmas Island Immigration Detention Centre recommended that the applicant be transferred to a different compound on the grounds that this compound contained a medical clinic where the applicant was being treated for back pain and that this was where more of his friends were. However, this request was not granted. Later, similar requests by the applicant were also not granted.

    The applicant was denied an MP3 player and family photographs which he had received from his family in Iran. A few days later the applicant was given a replacement MP3 player, but was still denied the photographs.

    The applicant asked his case manager for assistance in transferring money to his family in Iran, but was told this was not possible as the applicant did not have a passport.

    The applicant was forcefully placed in solitary confinement after he was accused of assaulting an officer. While in solitary confinement there was a riot, which resulted in fires and the use of tear gas on the applicant. The applicant felt “very upset and traumatised” by being in solitary confinement during the riot.

    The applicant had various mental health reviews and consultations while in immigration detention. The applicant was diagnosed with anxiety, depression and post-traumatic stress disorder.

    While later being transferred to Villawood Immigration Detention Centre and then to Perth Immigration Detention Centre the applicant was handcuffed.

    The applicant had his mobile phone confiscated while detained at the Perth Immigration Detention Centre. While at this detention centre the applicant was placed in solitary confinement, and denied sufficient food and access to a psychologist and counsellor. The applicant had back pain, was “feeling worse mentally” and was getting increasingly anxious. It was during this solitary confinement that the applicant committed the offence for which he was convicted on 24 April 2012.

PARTIES’ SUBMISSIONS

Ground 1(a): the term “offence” in s 501(6)(aa) does not include an offence of the type for which the applicant was convicted

Applicant

18        The applicant submits that it must have been the intention of Parliament that the power under s 501(1) of the Migration Act could not be exercised in a way which conflicts with Australia’s international obligations: Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 at 363 (O’Connor J); Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 (Mason CJ and Deane J). The applicant notes that, under art 32(1) of the Convention, Australia is obliged not to expel a refugee save on the grounds of national security or public order. Similarly, under art 33 Australia is obliged not to expel a refugee “to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion” unless the refugee is a danger to Australia’s security or constitutes a danger to the community. Accordingly, the applicant contends that the term “offence” in s 501(6)(aa) of the Migration Act must be construed consistently with Australia’s obligations under the Convention, and confined to offences of the type referred to in art 32 and art 33. The applicant submits that the offence for which the applicant was convicted on 24 April 2012 was not of that type. Consequently, the power to refuse to grant a visa under s 501(1) of the Migration Act was not enlivened.

Minister

19        The Minister submits that the applicant was convicted of an “offence” committed against a law of the Commonwealth. If the intention of Parliament was other than that the word “offence” meant any offence under, at least, Commonwealth law, then it would have made this very clear. Indeed, the Minister notes that the purpose of the Bill which became the Migration Amendment (Strengthening the Character Test and Other Provisions) Act 2011 (Cth) (Migration Amendment Act) (which inserted s 501(6)(aa) of the Migration Act) was to ensure that visa applicants will fail the character test should they be convicted of “any offence” committed while they are in immigration detention.

20        The Minister submits that as the offence was committed while the applicant was in immigration detention, the application failed the character test as defined in s 501(6)(aa)(i). This enlivened the discretion the Minister then exercised.

Ground 1(b): no determination of risk of future harm to the Australian community by the applicant

Applicant

21        The applicant contends this ground of review concerns the Minister’s omission to determine the existence of a jurisdictional fact.

22        The applicant notes that the Minister is empowered by s 499(1) of the Migration Act to give written directions to a person or body having functions or powers under the Act. Further, s 499(2A) of the Migration Act provides that “[a] person or body must comply with a direction under subsection (1)”. The applicant submits that the plain language of s 499(2A) indicates an intention that the Minister himself or herself be bound by such a direction. The applicant acknowledges that a contrary view on the meaning of s 499 has been expressed in Misiura v Minister for Immigration and Multicultural Affairs [2001] FCA 133 (Misiura) at [12]-[14] (and the cases there referred to), but invites the Court not to follow these decisions on the basis of the “unambiguous language” of s 499(2A).

23        Accordingly, the applicant contends, the Minister was bound by s 499(2A) to comply with Direction No. 55 – Visa refusal and cancellation under s501, which was made under s 499(1) on 25 July 2012 (Direction No 55). Pursuant to cl 7(1)(b) of Direction No 55, a decision maker must determine, before exercising the discretion under s 501(1), 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. The applicant submits that the Minister did not determine that the risk of future harm to the Australian community by the applicant was unacceptable and, as such, the Minister failed to determine the existence of a jurisdictional fact. Consequently, the power to refuse to grant a visa under s 501(1) of the Migration Act was not enlivened.

Minister

24        The Minister submits that there is binding Full Court authority that a direction made pursuant to s 499(1) of the Migration Act has no binding operation or effect on the Minister when acting personally: see the cases cited in Romano v Minister for Immigration and Citizenship [2011] FCA 1351; (2011) 124 ALD 198 (Romano) at [23]. Accordingly, the Minister contends, the only jurisdictional fact applicable was that the applicant did not satisfy the Minister that he passed the character test. Assuming the applicant committed an offence within the meaning of s 501(6)(aa) of the Migration Act, the Minister was entitled to be not so satisfied.

Ground 2(a): Minister’s decision was so unreasonable that no reasonable decision maker could have made it

Applicant

25        The applicant contends that an effect of the Minister’s decision to refuse to grant the applicant a protection visa was to deny the applicant the right to remain in Australia indefinitely, despite Australia’s obligations under art 32 and art 33 of the Convention. The applicant further contends that his conviction under s 29(1) of the Crimes Act was made following a plea of guilty, in relation to a relatively trivial act, and which occurred in extenuating circumstances which were aggravated by the applicant’s mental state at the time and his treatment while in immigration detention. As such, the applicant submits, the consequences of the refusal of the application for a protection visa were so disproportionate to the conduct which gave rise to the applicant’s conviction, considered in its circumstances, that the exercise of discretion was “manifestly unreasonable”. That is, the decision to refuse the applicant a protection visa under s 501(1) of the Migration Act was so unreasonable that no reasonable decision maker could have made it.

Minister

26        In essence, the Minister submits that via this ground the applicant challenges the merits of the Minister’s decision to refuse to grant a protection visa to the applicant. Further, the Minister submits that:

    The effect of the Minister’s decision was not to deny the applicant the right to remain in Australia indefinitely in breach of Australia’s obligations under art 32 and art 33 of the Convention: MZYYO v Minister for Immigration and Citizenship [2013] FCA 49 (MZYYO) at [69].

    The expressed policy underpinning the Migration Amendment Act demonstrates that the Minister is entitled to conclude that commission of an offence is, of itself, sufficient reason to refuse to grant a visa to an applicant.

    The concept of proportionality in decision making is a doctrine not affirmatively recognised in Australian administrative law.

Ground 2(b): improper purpose to the making of the decision

Applicant

27        The applicant submits that the discretion under s 501(1) of the Migration Act was conferred for the purpose of enabling, by the refusal of visas, the removal from Australia of non-citizens whose character is such as to justify their removal in the national interest.

28        However, the applicant contends that it should be inferred that the Minister’s purposes in deciding to refuse to grant a protection visa to the applicant were:

(1)    to provide a disincentive for others who may be contemplating engaging in criminal behaviour while in immigration detention;

(2)    to require the applicant to demonstrate good character over a period of two years out of immigration detention before deciding whether to permit the applicant to make a further application for a protection visa; and

(3)    to attempt to avoid Australia’s obligations under art 32 and art 33 of the Convention.

29        The applicant submits that none of these purposes was a purpose for which the Minister’s discretion under s 501(1) of the Migration Act was conferred. Accordingly, as the decision to refuse the applicant a protection visa under s 501(1) was not made for the purpose for which the discretion was conferred it was beyond power.

Minister

30        The Minister contends that the essential purpose of the power conferred by s 501(1) of the Migration Act is to regulate the entry into, and presence in, Australia of non-citizens: Applicant M 117 of 2007 v Minister for Immigration and Citizenship [2008] FCA 1838 (Applicant M 117) at [45], [48]. The Minister responds to the applicant’s contention as to the Minister’s alleged purposes in deciding to refuse to grant a protection visa to the applicant as follows:

(1)    The Minister’s point about providing a disincentive to others who may be contemplating criminal behaviour while in immigration detention was a component of his reasoning, not an ultimate purpose.

(2)    The “requirement” for the applicant to demonstrate good character over a period of two years before the Minister decides whether to permit the applicant to make a further application for a protection visa is only one potential consequence of the applicant having been granted a bridging visa. It was not a purpose of the Minister’s decision.

(3)    There is no evidence to suggest that the Minister was attempting to avoid Australia’s obligations under art 32 and art 33 of the Convention. Furthermore, the Minister’s decision did not offend the non-refoulement obligation in art 33: MZYYO at [69].

31        Further, the Minister submits that provided there was a probative basis for the decision, it is not open to the Court on judicial review to second-guess the Minister in this regard and in so doing impute an improper purpose: Applicant M 117 at [48].

Ground 2(c): inflexible application of a policy

Applicant

32        The applicant notes that the application of an inflexible policy, which precludes the decision maker from having regard to the merits of the case, results in decisions which are beyond power: Neat Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 33; (2003) 216 CLR 277 at [138] (Kirby J). The applicant contends that the Minister gave effect to his stated view that engaging in any criminal behaviour while in immigration detention was sufficient reason, without more, to refuse the applicant a protection visa under s 501(1) of the Migration Act. In so doing, the applicant submits, the Minister inflexibly applied a policy without a proper consideration of the merits of the applicant’s application.

Minister

33        First, the Minister submits that what the applicant characterises as his (the Minister’s) stated view that engaging in any criminal behaviour while in immigration detention was sufficient reason, without more, to refuse the applicant a protection visa, is not a “policy” in an administrative law sense.

34        Secondly, the Minister submits that there were no mandatory relevant considerations that the Minister was required by any statutory source to have regard to. Further, and in any event, the Minister contends that the applicant mischaracterises the Minister’s reasoning process. The Minister contends that the Minister’s reasoning process (as evidenced by his statement of reasons) is actually indicative of flexibility in administrative decision making.

Ground 2(d): failure to take relevant considerations into account

Applicant

35        The applicant repeats his submission that the Minister was bound by s 499(2A) of the Migration Act to comply with Direction No 55. However, the applicant submits, the Minister did not take the matters in Direction No 55 into account. That is, the Minister failed to take relevant considerations into account, considerations that could have materially affected the Minister’s decision to refuse to grant the applicant a protection visa.

Minister

36        The Minister submits that where the Minister exercises a discretion personally pursuant to s 501(1) of the Migration Act, there are no mandatory relevant considerations.

CONSIDERATION

Ground 1(a): the term “offence” in s 501(6)(aa) does not include an offence of the type for which the applicant was convicted

37        When interpreting a provision of a Commonwealth statute, it is, of course, necessary to prefer a construction that would best achieve the purpose or object of the statute (whether or not that purpose or object is expressly stated in the statute): s 15AA of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act). Section 15AA requires the purpose or object to be taken into account even if the meaning of the words, interpreted in the context of the rest of the statute, is clear. That said, the requirement of s 15AA that one construction be preferred to another can have meaning only where two constructions are otherwise open; s 15AA is not a warrant for redrafting legislation nearer to an assumed desire of Parliament: R v L (1994) 49 FCR 534 at 538; see also Mills v Meeking (1990) 169 CLR 214 at 235 (Dawson J).

38        The term “offence” in s 501(6)(aa) of the Migration Act is not defined in that Act. (Nor is it defined in the Crimes Act.) However, in my view there is nothing to indicate that the term carries any meaning other than its ordinary meaning and nor, in my view, is any other construction open – the ordinary meaning of “offence”, as defined in the Oxford Dictionary, is “a breach of a law or rule; an illegal act”. That is, there need be no recourse to s 15AA of the Acts Interpretation Act in order to construe the meaning of “offence”. In any event, in my view this construction of the term “offence” promotes the object of the Migration Act as outlined in s 4.

39        Furthermore, s 15AB(1) of the Acts Interpretation Act provides:

(1)    Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

(a)     to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or

(b)    to determine the meaning of the provision when:

(i)    the provision is ambiguous or obscure; or

(ii)    the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.

40        Pursuant to s 15AB(2), the material that may be considered in accordance with subsection (1) includes any second reading speech relating to the Bill containing the provision in question.

41        As noted by the Minister, when one has regard to extrinsic material relevant to s 501(6)(aa) of the Migration Act, it is apparent that the term “offence” in this paragraph does carry its ordinary, unrestricted meaning. For example, in the second reading speech in the House of Representatives on the Bill which became the Migration Amendment Act (which inserted s 501(6)(aa) of the Migration Act), the responsible Minister noted:

The purpose of this bill is to ensure that a visa applicant or holder will fail the character test should they be convicted of any offence committed while they are in immigration detention…

…

Among other things, section 501 of the Migration Act currently deals with matters that constitute serious criminal offences where a person can fail the character test … The proposed measures will amend the character test in section 501 of the Migration Act so that a person will fail the character test if the person is convicted of any offence while they are in immigration detention, regardless of the sentence imposed. (Emphases added)

See House of Representatives Hansard, 11 May 2011, pp 3509-3510. See also Senate Hansard, 14 June 2011, pp 2589-2591.

42        Finally, as the Full Court held in Cheedy v Western Australia [2011] FCAFC 100; (2011) 194 FCR 562 at [106]-[107]:

… neither logic nor the judgment in [Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273] support the use of Australia’s international obligations in the interpretation of the provisions under consideration in the absence of any ambiguity in the language of the provisions.

If a provision has a clear meaning then that meaning either reflects Australia’s international obligations or it does not. There is no scope for the application of any canon of construction to establish the meaning. But where there is more than one possible meaning of the provision, the canon of construction favouring Australia’s international obligations is available to identify the intended meaning. In other words, the canon of construction only has work to do where the provision is open to more than one interpretation.

43        As outlined, in my view there is no ambiguity in the meaning of s 501(6)(aa) of the Migration Act. Therefore, contrary to the applicant’s submission, there should be no recourse to Australia’s international obligations under the Convention in interpreting this provision.

44        The result is that the applicant’s conviction under s 29(1) of the Crimes Act was a conviction for an “offence” for the purposes of s 501(6)(aa) of the Migration Act (and which was committed while the applicant was in immigration detention). Consequently, the Minister’s discretion under s 501(1) of the Migration Act was enlivened.

45        Ground 1(a) therefore fails.

Ground 1(b): no determination of risk of future harm to the Australian community by the applicant

46        The applicant complains that the Minister did not determine that the risk of future harm to the Australian community by the applicant was unacceptable, which, the applicant submits, was a precondition to the exercise of the Minister’s power under s 501(1) of the Migration Act by virtue of cl 7(1)(b) of Direction No 55. As noted, Directions No 55 was made under s 499(1) of the Migration Act.

47        However, as noted by the Full Court in Howells v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 327; (2004) 139 FCR 580 at [31] (and a number of other decisions of this Court referred to in Romano at [23]), a direction made pursuant to s 499(1) has no binding operation or effect on the Minister when acting personally. It is trite to observe that, as a judge at first instance, I am bound by this Full Court decision. Therefore, given that the Minister was not bound by Direction No 55, there was no need for the Minister to determine whether the risk of future harm to the Australian community by the applicant was unacceptable. That is, such a determination was not a precondition to the exercise of the Minister’s power under s 501(1).

48        This conclusion notwithstanding, I note that Madgwick J, in Misiura at [14], observed that while the Minister is not bound to follow a direction when acting personally under s 501(1), it would seem just and fair that the Minister should in general do so and that, if the Minister should choose not to follow the same criteria he had directed others to observe, he would indicate his intention, in advance, to depart from the direction. In other words, considerations of procedural fairness may apply. I note, however, that the applicant does not complain that he has been denied procedural fairness by the Minister.

49        Ground 1(b) therefore fails.

Ground 2(a): Minister’s decision was so unreasonable that no reasonable decision maker could have made it

50        The most recent exposition of the law in relation to the judicial review ground of “unreasonableness” in administrative decision making was provided by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225 (Li). In Li, a unanimous High Court (albeit in three separate judgments) held that a decision of the Migration Review Tribunal to refuse an application for an adjournment of a merits review hearing (which adjournment was sought for the purpose of awaiting the receipt of material probative of a criterion relevant for the issue of the relevant visa) was so “unreasonable” as to constitute jurisdictional error.

51        At [68], the plurality (Hayne, Kiefel and Bell JJ) commented that “[t]he legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it” (but cf French CJ at [28], Gageler J at [88]-[89]). Rather, their Honours considered, at [76], that “[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”. In this sense, the applicant’s formulation of this ground of review, drafted as it was before the handing down of Li, is perhaps more restrictive than it needed to be. Notwithstanding, I will determine the ground of review on the basis of the most recent exposition of the law.

52        The applicant complains that the Minister’s decision to refuse to grant him a protection visa was unreasonable having regard to Australia’s obligations under art 32 and art 33 of the Convention, and the circumstances surrounding his conviction under s 29(1) of the Crimes Act. The question is, then, did the Minister’s decision lack an evident and intelligible justification having regard to these matters?

53        The first point to note is that the decision to refuse to grant the applicant a protection visa was not a decision to remove the applicant from Australia in breach of art 32 of the Convention (nor a decision which offended the non-refoulement obligation in art 33): MZYYO at [68]-[69].

54        Secondly, in my view it may reasonably be inferred that the Minister did have regard to the circumstances surrounding the applicant’s conviction. For the purposes of considering the applicant’s application for a protection visa, an Issues Paper was prepared for the Minister by the Department of Immigration and Citizenship (Department). Importantly, this Issues Paper specifically noted:

    A submission made on behalf of the applicant that Chief Magistrate Heath did not regard the applicant’s conviction as particularly serious. The full text of this submission, as well as the order of Chief Magistrate Heath and the transcript of the proceeding, was attached to the Issues Paper.

    Under a sub-heading titled “Mitigating Factors”, submissions made on behalf of the applicant in relation to the extenuating circumstances surrounding the applicant’s conviction under s 29(1) of the Crimes Act (albeit not to the same level of detail as in the applicant’s affidavit). The full text of this submission was attached to the Issues Paper.

    That there is no evidence of the applicant breaching any judicial orders and that he pleaded guilty to the offence under s 29(1) of the Crimes Act.

55        In his statement of reasons, the Minister specifically noted that he had assessed the information set out in the Issues Paper and attachments. Furthermore, that he had “considered all relevant matters including … all other evidence available to me, including evidence provided by, or on behalf of [the applicant]”.

56        The fact that a person fails to satisfy the Minister that he or she passes the character test triggers the Minister’s discretion under s 501(1) of the Migration Act. Given my findings in relation to grounds 1(a) and 1(b) of the application, this discretion was triggered. As outlined above, the Minister considered:

    Australia’s non-refoulement obligations to the applicant;

    the fact that it was his view that engaging in any criminal behaviour while in immigration detention is serious and the Australian community has an expectation that people who seek to remain in Australia will respect Australia’s laws and legal authority, and be of good character;

    that the consequences of such behaviour in particular cases should also provide a disincentive to others who may be at risk of engaging in criminal behaviour while in immigration detention;

as well as the circumstances surrounding the applicant’s conviction, before concluding that his discretion should be exercised to refuse to grant the applicant a protection visa. Clearly, this decision was (legitimately) informed by considerations of policy: Li at [108] (Gageler J). In such circumstances, I do not agree that this decision lacked an evident and intelligible justification. The decision was rationally open to the Minister; it was not arbitrary: Li at [30] (French CJ).

57        Lastly, in one of the particulars to this ground of review, the applicant contends that:

[T]he consequences of the refusal of the application for a protection visa were so disproportionate to the conduct which gave rise to the applicant’s conviction, considered in its circumstances, that the exercise of discretion was manifestly unreasonable.

58        In Australia, the role of the concept of “proportionality” in considering whether a decision is so unreasonable as to constitute jurisdictional error is not settled: Andary v Minister for Immigration and Multicultural Affairs [2003] FCAFC 211 at [12]; James v Military Rehabilitation and Compensation Commission [2010] FCAFC 95; 186 FCR 134 at [41]. This position may become clearer in light of Li, in which several members of the High Court appeared to consider that a disproportionate exercise of an administrative discretion may indicate unreasonableness: Li at [30] (French CJ), [74] (Hayne, Kiefel and Bell JJ). In any event, for the reasons outlined, I do not consider that, in this case, the Minister’s decision to refuse to grant the applicant a protection visa was a disproportionate exercise of his power under s 501(1) of the Migration Act.

59        Ground 2(a) therefore fails.

Ground 2(b): improper purpose to the making of the decision

60        In Applicant M 117, Kenny J commented, at [45], that an essential purpose of a power such as s 501(3) of the Migration Act is to regulate the entry into, and presence in, Australia of non-citizens. Section 501(3) is similar to s 501(1) and s 501(2) (which relates to cancellation of visas on character grounds), except that in decisions under subsection (3) the Minister only has to reasonably suspect that a person does not pass the character test (which is also a requirement under subsection (2)), the rules of natural justice and the code of procedure set out in Subdiv AB of Div 3 of Pt 2 do not apply, a decision may only be made by the Minister personally, and the Minister must be satisfied that the refusal or cancellation of a visa is in the national interest. Accordingly, it may be taken that an essential purpose of s 501(1) of the Migration Act is also to regulate the entry into, and presence in, Australia of non-citizens.

61        In this case, the purpose of the Minister’s exercise of power under s 501(1) on 29 October 2012 was to regulate the presence in Australia of the applicant. The effect of the Minister’s decision was for the applicant to remain in immigration detention (until, on 29 November 2012, the Minister granted the applicant a bridging visa). This decision under s 501(1) was made by reference to the very kind of matter to which the provision directs attention; namely, that the applicant had not satisfied the Minister that he passed the character test: Applicant M 117 at [45].

62        Accordingly, given there was a probative basis for the decision, it is not open to the Court to second-guess the Minister in this regard and, in so doing, impute an improper purpose: Applicant M 117 at [48].

63        In any event, in my view neither the reasons that the Minister gave for refusing to grant the applicant a protection visa nor any subsequent conduct by the Minister provide any sufficient basis for an inference of improper purpose: Applicant M 117 at [48]. In particular, I reject the applicant’s submission that the purposes of the Minister’s decision were:

(1)    to provide a disincentive for others who may be contemplating engaging in criminal behaviour while in immigration detention;

(2)    to require the applicant to demonstrate good character over a period of two years out of immigration detention before deciding whether to permit the applicant to make a further application for a protection visa; and

(3)    to attempt to avoid Australia’s obligations under art 32 and art 33 of the Convention.

64        In my view, on a fair reading of the Minister’s statement of reasons the first of these alleged “purposes” should properly be construed as a consequence of the Minister’s decision or, at best, a component of his reasoning.

65        In regard to the second of these alleged “purposes”, it is true that the possibility of the applicant being granted a bridging visa in the event he was refused a protection visa was alluded to as “alternative management option” in a submission by the Department to the Minister regarding the applicant’s application for a protection visa. However, absent further evidence to support this contention, in my view the Court should not second-guess the Minister and impute an improper purpose (if indeed this purpose would be improper): Applicant M 117 at [48]. Rather, in my view this alleged “purpose” should properly be construed as simply a consequence of the grant of the bridging visa.

66        In regard to the third of these alleged “purposes”, as noted above, the decision to refuse to grant the applicant a protection visa was not a decision to remove the applicant from Australia in breach of art 32 of the Convention (nor a decision which offended the non-refoulement obligation in art 33): MZYYO at [68]-[69]. Accordingly, I would reject this particular submission by the applicant.

67        Ground 2(b) therefore fails.

Ground 2(c): inflexible application of a policy

68        Without making a finding on the issue, it may be assumed, for the purpose of taking the applicant’s case at its highest, that what the applicant characterises as the Minister’s stated view that engaging in any criminal behaviour while in immigration detention was sufficient reason, without more, to refuse the applicant a protection visa is a “policy” in an administrative law sense. The question is, then, was this policy inflexibly applied without regard to the merits of the applicant’s case?

69        In this regard, it is worth noting the particulars to this ground of review. Under the first particular, the applicant complains that the Minister took the view that engaging in criminal behaviour while in immigration detention was sufficient reason, without more, to refuse the applicant a visa under s 501(1) of the Migration Act. Under the second particular, the applicant complains that the Minister did not have regard to the following facts:

1.    The applicant’s conviction was in relation to a relatively trivial act, occurring in extenuating circumstances;

2.    At the time the act was done the applicant was suffering from depression, post traumatic stress disorder and anxiety, which had been aggravated by the applicant’s treatment while in immigration detention;

3.    The applicant’s conviction followed the applicant’s plea of guilty;

4.    in the 15 months between the applicant’s act and the respondent’s decision, the applicant had remained in immigration detention and had not committed any other offence.

70        In his written submissions, the applicant contends that these facts were contained in a submission from the applicant’s migration agent to the Department dated 10 September 2012.

71        However, in my view a fair reading of the Minister’s statement of reasons indicates that the Minister did have regard to the “extenuating circumstances” surrounding the applicant’s conviction under s 29(1) of the Crimes Act (that is, the merits of the applicant’s case), and so did not inflexibly apply a policy.

72        In the statement of reasons, under the heading “Discretion”, the Minister stated:

Having found that [the applicant] does not pass the character test and having assessed the information set out in the Issues Paper and attachments, I considered whether to exercise my discretion to refuse to grant [the applicant] a visa. (Emphasis added)

73        One of the attachments to this Issues Paper was the submission from the applicant’s migration agent dated 10 September 2012. Therefore, contrary to the applicant’s contention as regards this submission, it may reasonably be inferred that the Minister did, in fact, consider the material within it.

74        Furthermore, as outlined in part above, the Issues Paper itself specifically noted:

    A submission made on behalf of the applicant that Chief Magistrate Heath did not regard the applicant’s conviction as particularly serious. The full text of this submission, as well as the order of Chief Magistrate Heath and the transcript of the proceeding, was attached to the Issues Paper.

    Under a sub-heading titled “Mitigating Factors”, submissions made on behalf of the applicant in relation to the extenuating circumstances surrounding the applicant’s conviction (albeit not to the same level of detail as in the applicant’s affidavit). The full text of this submission was attached to the Issues Paper.

    That there is no evidence of the applicant breaching any judicial orders and that he pleaded guilty to the offence under s 29(1) of the Crimes Act.

    That the applicant has no recorded convictions in Australia or in Iran apart from the conviction under s 29(1) of the Crimes Act.

75        Then, as noted above, in the statement of reasons the Minister specifically noted:

    that the applicant failed the character test in s 501(6) of the Migration Act;

    that the applicant’s criminal conduct is “serious and the kind of conduct that will not be tolerated while people are in immigration detention”;

    the applicant’s migration agent’s assertion that the applicant’s offending was due to stress and that he is unlikely to re-offend; and

    Australia’s non-refoulement obligations to the applicant;

before concluding that his discretion should be exercised to refuse to grant the applicant a protection visa.

76        In such circumstances, it cannot, in my view, be said that the Minister inflexibly applied a policy without regard to the merits of the applicant’s case.

77        Ground 2(c) therefore fails.

Ground 2(d): failure to take relevant considerations into account

78        At the hearing of the application counsel for the applicant admitted that ground 1(b) and ground 2(d) largely stand or fall together. As outlined above, the Minister was not bound to comply with Direction No 55. The matters in Direction No 55 are not mandatory relevant considerations: Romano at [23]-[24].

79        Ground 2(d) therefore fails.

CONCLUSION AND ORDERS

80        In these circumstances the application should be dismissed with costs.

Associate:

Dated:    7 October 2013