FEDERAL COURT OF AUSTRALIA

Durani v Minister for Immigration and Border Protection [2014] FCA 129

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs 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

1    The applicant seeks, pursuant to s 476A(1)(c) of the Migration Act 1958 (Cth) (the Act), review of a decision (the Decision) of the respondent (the Minister), made on 3 September 2013, to cancel the applicant’s visa.

2    The decision to cancel the applicant’s visa was made under s 501A(2) of the Act. This provision enables the Minister, acting in a personal capacity, to set aside a decision of the Administrative Appeals Tribunal (AAT) not to exercise the power conferred by s 501(2) to cancel a visa, and then to make a decision to cancel a visa.

3    The application for review is made under ss 39B(1) and (1A)(c) of the Judiciary Act 1903 (Cth). The applicant, in order to succeed, must establish that the Decision is affected by jurisdictional error.

4    The applicant relies on four grounds of review.

5    The first two grounds of review relate to the Minister’s finding regarding the national interest. The first asserts a denial of procedural fairness. The second is that the Minister failed to have regard to whether it is in the national interest “for a child of the age and circumstances of the [a]pplicant’s son to be separated indefinitely from his father”, a consideration that is asserted to be a mandatory consideration in the determination of the national interest. This too, in part, raises an issue of procedural fairness.

6    The other grounds of review relate to the exercise of the Minister’s discretion in deciding to cancel the applicant’s visa. The first is that the Minister failed to give proper, genuine and realistic consideration to two critical contentions put in the applicant’s response to the notice of possible cancellation of his visa, namely, the finding of the AAT that the applicant’s risk of reoffending was minimal and the “content sourcing the AAT’s conclusion that it had no doubt that cancellation of the applicant’s visa is not in the best interests of the applicant’s child”. The second is that the Minister fettered his discretion, in that he inflexibly applied a policy or rule, in proceeding on the basis that that any risk of reoffending is unacceptable and therefore necessarily prevails over countervailing considerations.

Relevant background

7    The applicant relies upon two affidavits sworn by him on 19 October and 26 October 2013.

8    The applicant is a 38-year-old Indian national. He first came to Australia on 6 December 2006 as the holder of a Class UE, Subclass 422 (Medical Practitioner) visa, being a visa that allowed him to remain in Australia on a temporary basis. On 13 July 2009 he was granted a permanent visa in the form of a Class VE, Subclass 175 (Skilled – Independent) visa. It is that visa that is the subject of the cancellation decision of 3 September 2013.

9    The applicant has a wife and a child in Australia, both of whom are Australian citizens.

10    In February 2010, the applicant was employed as a Resident Medical Officer at the Royal Perth Hospital (RPH). On 20 February 2010 he committed the offences of unlawful and indecent assault (three counts) and sexual penetration without consent (two counts) against a 19 year old female patient of the RPH. He was convicted of those offences by the District Court of Western Australia on 10 June 2011 and sentenced to a total effective period of imprisonment of 2 years and 4 months. The applicant’s appeal against the convictions to the Court of Appeal of the Supreme Court of Western Australia was dismissed on 30 August 2012: Durani v The State of Western Australia [2012] WASCA 172.

11    The applicant was imprisoned from 13 July 2011 until his release on parole on 6 February 2013, at which time he was taken into immigration detention.

12    The applicant’s visa was first cancelled on 5 February 2013. That cancellation was made under s 501(2) of the Act by a delegate of the Minister. Subsection 501(2) permits the Minister, or a delegate of the Minister, to cancel a visa in circumstances where a person is suspected of not passing the “character test”, and does not satisfy the decision-maker that they do pass the test. The applicant fails to pass the character test because of a “substantial criminal record” arising from the sentences of imprisonment for the two counts of sexual penetration without consent: s 501(6) and (7). That “substantial criminal record” is also relevant to the exercise of the cancellation power under s 501A(2): the failure of the applicant to satisfy the Minister that he passes the character test being one of the preconditions to the exercise of the power (s 501A(2)(d)).

13    A review of the cancellation decision under s 501(2) was heard by the AAT and on 6 May 2013, the decision was set aside and, in substitution, a decision made that the applicant’s visa not be cancelled: Re Durani and Minister for Immigration and Citizenship [2013] AATA 273. The applicant was then released from immigration detention.

14    Correspondence, variously, was sent from the Department of Immigration and Citizenship to the applicant. I will refer to this as being from the Minister.

15    On 4 June 2013, notice was given to the applicant that the then Minister intended to consider whether to set aside the decision of the AAT and cancel the applicant’s visa under s 501A(2) (the Notice). Attached to the Notice was a document containing extracts from the Act, including s 501A. The Notice advised the applicant that he may wish to submit information about, or comment upon, whether he passed the character test, whether the Minister should exercise his discretion to cancel his visa, and whether cancellation of the visa would be in the national interest.

16    By letter dated 12 June 2013 the Minister noted the existence of some "further information" which might be taken into account in making the foreshadowed cancellation decision.

17    On 24 June 2013 the applicant's solicitor wrote to the Minister explaining, in substance, that the correspondence received to date concerning the potential cancellation decision did not specify any potential grounds upon which such a decision might be made.

18    The Minister replied by letter on 27 June 2013. I will refer to this letter in more detail.

19    The applicant contends that nothing was identified, in the Minister’s letter of 27 June 2013 or otherwise, as to what the content of the "national interest" might be in the circumstances of the present case and on what basis the Minister might accordingly be "satisfied" that cancellation of the applicant’s visa could be in the national interest. This point was one of a number of observations and submissions regarding the possible exercise of the power under s 501A(2) made by the applicant's solicitor in his responsive letter to the Minister of 15 July 2013.

20    On 3 September 2013 the then Minister made the Decision under s 501A(2) to cancel the applicant’s visa, and the applicant was detained on 6 September. He has since remained in immigration detention at the Perth Immigration Detention Centre.

The Minister’s power to cancel a visa under s 501A(2) of the Act

21    Section 501A of the Act, relevantly, enables the Minister to set aside a decision of the AAT not to exercise the power to cancel a visa under s 501(2) (the “original decision”), and substitute a decision to cancel a visa.

22    Subdivision AB of Div 3 of Pt 2 of the Act contains the exhaustive statement of the requirements of natural justice in relation to the matters it deals with. These requirements apply to the exercise of power under s 501A(2).

23    The Minister may cancel a visa under s 501A(2) if:

(a)    the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(b)    the person does not satisfy the Minister that the person passes the character test; and

(c)    the Minister is satisfied that the refusal or cancellation is in the national interest.

24    Reasons regarding the Minister’s findings concerning the character test are at paras [6]-[8] of the Minister’s statement of reasons (SOR). The applicant does not challenge this aspect of the Minister’s reasons. Indeed, his counsel acknowledged that the criteria under s 501A(2)(a) and (b) were each established.

25    The question of what is or is not in the national interest is an evaluative one and is entrusted by the legislature to the Minister to determine according to his satisfaction which must nevertheless be obtained reasonably: Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 at [89].

26    At SOR [9]-[14] the Minister set out the following reasons under the heading of “NATIONAL INTEREST”:

“9.    Dr DURANI has been convicted of two counts of sexual penetration without consent and three counts of unlawful and indecent assault. I consider these offences to be very serious sexual offences. While committing these offences Dr DURANI abused his position of authority and trust in relation to a vulnerable patient under this [sic] care. I consider that these circumstances aggravate the seriousness of Dr DURANI [sic] offences. I also consider that these sexual offences are repugnant to the Australian community and offend the values of Australian society.

“10.    Dr DURANI was granted a visa under the skilled migration program to allow him to provide medical services to the Australian community. I consider that his offending committed while performing his professional duties brings the skilled migration program into disrepute and therefore undermines public confidence in the program and therefore its integrity.

“11.    Furthermore, I have had regard to Dr DURANI’s conduct and the need to preserve public confidence in the nation’s health care system.

“12.     I have considered the claims made by Mr Shakur, that it would be in the national interest for Dr DURANI to remain in Australia as he is a competent doctor with the support of his colleagues and there is a possibility that he may again be able to practice medicine.

“13.    While, I accept that the cancellation of Dr DURANI’s visa will cause harm to his wife and son I do not agree with Mr Shakur’s argument that this harm is so severe that it outweighs the benefits to the national interest achieved by the cancellation of his visa.

“14.    Having regard to all of the above material, I am satisfied that the cancellation of Dr DURANI’s visa is in the national interest. His sexual offending was very serious and his conducted [sic] undermined the integrity of the skilled migration program as well as reducing public confidence in the nation’s health care system.”

Grounds of application for review

27    The grounds for review as amended are as follows:

(A)    In reaching a state of satisfaction that it was in the national interest to cancel the Applicant's visa [the Minister] -

1.    Failed to accord the Applicant procedural fairness by informing the Applicant of:

(a)    the considerations which he regarded as being relevant to that process of satisfaction;

(b)    the grounds on which he was considering making a determination adverse to the Applicant; and

by providing the Applicant with:

(c)    a reasonable opportunity to be heard on those considerations and grounds.

2.    Failed to have regard to a consideration that he was bound to have regard to, namely whether it is in the national interest (not merely the interests of the individuals directly concerned) for a child of the age and circumstances of the Applicant's son to be separated indefinitely from his father.

(B)    In the exercise of his discretion to cancel the Applicant's visa [the Minister] -

3.    Failed to give proper, genuine and realistic consideration to two critical contentions advanced on behalf of the Applicant in his response to the First Respondent's Notice of Intention to Cancel the Applicant's Visa of 4 June 2013, namely:

(a)    The finding of the Administrative Appeals Tribunal that the Applicant's risk of reoffending was minimal; and

(b)    The content sourcing the AAT's conclusion that it had no doubt that cancellation of the Applicant's visa is not in the best interests of the Applicant's child.

4.    Impermissibly fettered the exercise of his discretion, further or alternatively inflexibly applied a policy or rule, in proceeding on the premise that given the nature of the offending and harm the subject of the offences for which the Applicant was convicted, any risk of reoffending is unacceptable and therefore necessarily prevails over all countervailing considerations, irrespective of their degree of relevance and the factual material supporting their cogency.

Ground A1 – Procedural fairness

28    Procedural fairness requires that a person affected by a decision be informed of the “critical issues” to be addressed by a decision-maker: Kioa v West (1985) 159 CLR 550 at 587 per Mason J; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9] per French CJ and Kiefel J. A decision-maker must also advise of any “adverse conclusion which would not obviously be open on the known material”: SZGUR at [9] per French CJ and Kiefel J.

29    The applicant submits that he had no notification that assessment of the national interest was going to be approached in the way exposed by SOR [9]-[14], nor was he advised of any adverse conclusion which would not obviously be open on the factual material.

30    The Notice informed the applicant that:

When considering whether to cancel your visa under subsection 501A(2), the Minister will take into account information that has previously been provided to you, your criminal record, the AAT’s decision, information provided by you in response to the notice of intention to consider cancellation sent to you on 7 November 2011 and any new information.

31    The Notice then set out a list of “relevant information” which included:

•    the decision of the AAT dated 6 May 2013;

•    sentencing remarks of the District Court of Western Australia of 13 July 2011;

•    the judgment of the Court of Appeal of Western Australia of 30 August 2012; and

•    the applicant’s National Police Certificate dated 29 August 2011.

32    The Notice informed the applicant that:

You may wish to submit information about whether you pass the character test or provide comment on, or information relating to, whether the Minister should exercise his discretion to cancel your visa and on the Minister’s consideration of whether cancellation of your visa would be in the national interest. (Emphasis added.)

33    The letter from the Minister of 27 June 2013 to which I have already referred informed the applicant’s solicitor that the relevant "information" which the Minister was going to consider when deciding whether to exercise his power under s 501A(2) was that referred to and contained in the Notice and the 12 June 2013 letter. It also stated that:

As detailed in subsection 501A(2) the grounds under which the Minister may decide to cancel Mr Durani’s visa are:

•    the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

•    the person does not satisfy the Minister that the person passes the character test; and

•    the Minister is satisfied that the cancellation is in the national interest.

(Emphasis added.)

34    The sufficiency of a notice, given in substantially the same form as that in the present case, for the purpose of satisfying procedural fairness obligations with respect to the exercise of the power under s 501A(2), was considered in Maurangi v Bowen (2012) 200 FCR 191. The notice to Mr Maurangi stated, inter alia:

You should note that under subsection 501A(2) of the Act, the Minister will take into consideration the issue of “national interest”. Therefore, you may wish to address this issue too.

35    The question considered was whether the Minister failed to accord the applicant procedural fairness in failing to identify to the applicant the relevant factor or factors that might satisfy the Minister that the cancellation of the visa would be in the national interest pursuant to s 501A(2)(e) of the Act (at [57]).

36    This ground of review was rejected. At [60] Lander J, in concluding that there was no denial of procedural fairness, stated:

The applicant was aware that his substantial criminal record was such that he could not pass the character test, and that he could not satisfy the Minister that he could pass the character test. He was made aware in the notice that if that were the case, which clearly it was, the matter that the Minister would consider was whether the Minister was satisfied that the cancellation of the applicant’s visa was in the national interest. In my opinion the applicant was made aware of the matters under consideration. (Emphasis added.)

37    So much was the position in the present case. Nonetheless, the applicant’s counsel submitted that the Minister failed to identify properly, or at all, the grounds “in the sense of the substance of reasoning that the Minister was minded to undertake” but that he merely reiterated the statutory test. The decision of the High Court in SZGUR was cited in support.

38    However, what the High Court explained in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 was affirmed in Tewao v Minister for Immigration and Citizenship (2012) 126 ALD 185 at [36] when the Court stated “the minister was not required to give the appellant a “running commentary” on his thought processes.” Indeed, this principle was repeated in SZGUR at [9], albeit in the context of consideration of what was “information” for the purposes of s 424A of the Act. SZGUR at [9] is authority for the proposition that “[p]rocedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power” and the decision-maker “must also advise of any adverse conclusions which would not obviously be open on the known material”. I have already adverted to this above.

39    Moreover, in that very context, French CJ and Kiefel J in SZGUR immediately proceeded to repeat that “… a decision-maker is not otherwise required to expose his or her thought processes or provisional views”: at [9]. The reasoning of the Minister that the applicant’s serious sexual offending undermined the integrity of the skilled migration program as well as reducing public confidence in the nation’s health care system fell into that category. The core conclusion of the Minister, leading to his making the Decision, was that “[w]hile the risk of Dr DURANI re-offending … [was] low, the nature of his offending and the harm should it be repeated mean[t] that any level of risk [was] unacceptable and prevail[ed] over all countervailing considerations …” (SOR [38]).

40    In my view, the Notice raised the critical issues and in particular specifically informed the applicant that his criminal record would be taken into account in the Minister’s considerations against the well understood fact that the applicant could not pass the character test: s 501(6) and (7). The relevant paragraph of the Notice disclosing this fact was extracted at para [10] of the applicant’s response of 15 July 2013.

41    The Minister’s adverse conclusions concerning the national interest all relate to implications arising from the applicant’s substantial criminal record and were, in each case, an obviously natural response, or were obviously open on the known material: SZGUR at [9]. It would have been evident to the applicant that a conclusion adverse to his interests might be drawn with respect to the national interest arising from his substantial criminal convictions. So much was clear by statements to the effect that consideration was to be given to cancellation of the applicant’s visa under s 501A(2), by the identification of the national interest as relevant to that consideration and by the invitation to the applicant to submit information in respect to that consideration.

42    The applicant’s response of 15 July 2013, at para [16], addressed the issue of the assessment of the national interest, including by acknowledging that the nature of the assessment to be conducted required a broad evaluative judgment for which a number of considerations may be relevant. It also acknowledged that, in determining the questions of “national interest” and the residual discretion under s 501A(2), the Minister was bound, by reason of the decision in Gbojueh v Minister for Immigration and Citizenship (2012) 202 FCR 417 per Bromberg J at [45]-[46], to take into account, in relation to both questions, “the potential for the Australian community to be harmed by the continued presence in Australia of the non-citizen”. Thus, recognising that such considerations included the risk of future harm to the community, the applicant’s response argued that it was in the national interest for him to remain in Australia, because “[h]e is a competent, committed doctor with the overwhelming support of his colleagues at not only the Royal Perth Hospital but within the wider medical profession of Perth.”

43    As to the course of the Minister’s reasoning concerning consideration of the national interest, the applicant sought to make something of the fact that “[i]t certainly was a different approach to the issues of risk to the community, and their perceived importance, than had been taken by the AAT.” Nothing turns on this. The review by the AAT concerned the decision by a delegate of the Minister to cancel the applicant’s visa under s 501(2) of the Act. The power to cancel a visa under s 501(2) arises if (a) the Minister (or a delegate) reasonably suspects that the person does not pass the character test, and (b) the person does not satisfy the Minister that the person passes the character test. Unlike s 501A(2), consideration of the national interest plays no role in establishing the preconditions for the exercise of the cancellation power under s 501(2). Accordingly, the AAT reasons provide no relevant comparison to the Minister’s reasons in relation to the national interest for the purposes of s 501A(2).

44    The applicant also relied upon Ruatita v Minister for Immigration and Citizenship (2013) 212 FCR 364. It too involved a decision of the Minister to overturn a decision of the AAT not to exercise the power to cancel Mr Ruatita’s visa. Flick J stated that when a visa holder may not be conversant with the English language and even less conversant with the legal and factual issues to be addressed, care should be taken by those administering the legislation to ensure that those affected are as clearly as possible notified of the issues to be addressed, but found that there was a lack of attention to detail and the potential to mislead Mr Ruatita. His Honour concluded that the decision-making process between September and December 2012 did not adequately identify the relevance of the national interest to the exercise of the power under consideration. That case turned on its particular facts.

45    Here, by contrast, as the Minister submits, the applicant was advised in clear terms that an issue for consideration by the Minister was whether it was in the national interest that his visa be cancelled. Such consideration obviously concerned, centrally, the applicant’s substantial criminal record. In his submissions to the Minister the applicant addressed the issue of the national interest, and submitted that it was in the national interest for him to remain in Australia.

46    There was no denial of procedural fairness.

47    This ground fails.

Ground A2 – Best interests of applicant’s son

48    Cases involving administrative decisions which concern children, as the present case does, create a legitimate expectation that, in deciding whether to exercise a discretionary power of the kind involved here, the Minister will act in conformity with the Convention on the Rights of the Child, opened for signature on 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (the Convention). Article 3(1) of the Convention provides:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

49    Where the Minister has not treated the best interests of the child as a primary consideration then an applicant will have been denied procedural fairness in that he or she will not have been afforded the opportunity to present a case against a decision inconsistent with the legitimate expectation: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; Nweke v Minister for Immigration and Citizenship (2012) 126 ALD 501 at [10]-[21]; Lesianawai v Minister for Immigration and Citizenship (2012) 131 ALD 27 at [33]-[43].

50    I do not regard the decision in Leiataua v Minister for Immigration and Citizenship (2012) 208 FCR 448 as authority to the contrary. The issue in that case was not precisely the same, although it was similar. Moreover, the Court was not taken to Teoh or the two recent decisions of this Court in Nweke and Lesianawai. Indeed, the Court observed at [21] that it was “uninstructed by authority”.

51    I accept that the subject matter of the Decision constituted an action concerning a child. It follows that the interests of the applicant’s infant son was a primary consideration.

52    The applicant submits that despite the force of the conclusion reached by the AAT as to the best interests of the applicant’s son, supported as it was by the body of evidentiary material before it, the significance of the best interests of the applicant's child was only considered by the Minister in an indirect, reactionary way. That is, the question was posed: given the very considerable detriment to the national interest by virtue of the commission of the offences alone, was there some limitation or detraction from that harm to the national interest by virtue of the harm to be caused to the applicant's wife and son should the applicant's visa be cancelled and he be detained or deported?

53    The applicant submits that there is another question which needed to be addressed and answered for a proper evaluation of what was relevantly in the "national interest", and hence a proper approach to arriving at the requisite level of "satisfaction": can it be said that there are ever circumstances in which it is in the interests of a country with the commitment to democratic values such as Australia, as a signatory to international obligations such as the Convention, to procure a forced separation between a father and his infant son?

54    I am satisfied that the Minister gave primary consideration to the best interests of the applicant’s son. At SOR [13] under the heading of “NATIONAL INTEREST”, the Minister stated:

13.    While, I accept that the cancellation of Dr DURANI’s visa will cause harm to his wife and son I do not agree with Mr Shakur’s argument that this harm is so severe that it outweighs the benefits to the national interest achieved by the cancellation of his visa.

55    Moreover, in dealing with the issue of the national interest the Minister’s consideration is not to be confined only to SOR [9]-[14]. Relevantly, at SOR [26]-[28] the Minister stated in plain and comprehensive terms:

26.    Dr DURANI has an Australian citizen son, Mohammad Shuja Khan Durani, who is four years of age. Dr DURANI is living with his wife and son.

27.    I accept Dr DURANI’s agent’s argument that the cancellation of his visa would have a detrimental effect on Mohammad.

28.    I consider that it would be in Mohammad’s best interest if Dr DURANI’s visa were not cancelled. The cancellation of Dr DURANI’s visa would mean that he would be unable to play a positive parental role during Mohammad’s childhood and Mohammad would be deprived of the psychological, emotional and financial support that Dr DURANI would be able to provide if he remained in Australia.

56    Accordingly, the Minister made the strongest of findings concerning the detriment to the applicant’s son. The applicant’s contention that his arguments before the Minister were considered only in an indirect and reactionary way is not supported or supportable. The applicant could not have hoped for any more favourable conclusions to be made by the Minister as to the impact on his son from an adverse decision than those which were, in fact, made and that, consequently, it was in the son’s best interests that the applicant’s visa not be cancelled. This conclusion was reached although such detriment will only arise should the applicant’s wife continue to choose to remain in Australia with their son and not, with him, follow the applicant back to India.

57    I reject the submission that it cannot ever be in the national interest to make a decision of the kind involved here which has the result that a child will be separated from a parent. There are many different reasons why the national interest, including the national security interest, may outweigh the best interests of a child. In this case, it was primarily the risk of the applicant re-offending. Whilst the risk was low the Minister was entitled to conclude, as he did, that any risk of re-offending and the consequent harm which would be occasioned to members of the Australian community was unacceptable.

58    As the Minister stated at SOR [37]-[38]:

37.    A non-citizen who has committed a serious crime of a sexual nature, particularly against vulnerable members of the community should generally expect to forfeit the privilege of staying in Australia. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling a visa.

38.    While the risk of Dr DURANI reoffending may be low, the nature of his offending and the harm should it be repeated means that any level of risk is unacceptable and prevails over all countervailing considerations, including the best interests of Dr DURANI’s minor biological son Mohammad, the strength of his ties to Australia, his period of residence, the effect of cancellation on his wife and any impediments that he may face in establishing himself in India. (Emphasis added.)

59    This ground fails.

Ground B3 – Proper, genuine and realistic consideration

60    I reject Ground B3 for the reasons which include those set out above under Ground A2 concerning the Minister’s finding that the best interests of the applicant’s son were that the applicant’s visa not be cancelled. The particulars under Ground B3(a) are contrary to the facts. The Minister did take into account, as a fact, as I have explained above, that the risk of the applicant re-offending was low. If the point of this particular is to distinguish “minimal risk” from “low risk” then it avails the applicant nothing. Whatever the difference, if there be one in this case, the Minister concluded, as he was entitled to, that any risk of re-offending was unacceptable.

61    The particulars under Ground B3(b) add nothing. If it matters, the conclusion of the AAT as to what was in the best interests of the applicant’s son was exactly that found by the Minister. It is not to the point to complain that the Minister arrived at this important conclusion by different means or on lesser evidence than was relied upon by the AAT. Such a proposition, even were it established, does not disclose jurisdictional error.

62    I reject this ground. The submission that the applicant failed to give proper, genuine and realistic consideration to the applicant’s contentions in this regard, is wholly unmeritorious. It is unnecessary to consider what may have been the consequences of such a failure, such as, for example, a constructive failure to exercise jurisdiction, had I determined otherwise.

63    This ground fails.

Ground B4 – Fettering of discretion

64    The applicant’s submission is that although the SOR did not in terms refer to the application of any "policy", the effect of the Minister’s reasoning to his conclusion at SOR [36]-[38] was to the effect that he was adopting a fixed and immutable presumption by reason of the very fact of the applicant's criminal convictions which caused the applicant's position to be beyond redemption and that strong countervailing considerations in his favour were incapable of overcoming that presumption, as was his minimal risk of reoffending. Thus, as the applicant contends, the nature of the facts detailing those considerations, and that minimal risk, were at least in terms considered, but not properly, genuinely or realistically so. It follows, the applicant submits, that the effect of the Minister's limited reasoning from which his conclusion was derived was to strip his residual discretion of any operative content and that consequently the Minister did not exercise his statutory power under s 501A(2) of the Act according to law.

65    This ground is in substance that the Minister applied a test that where such an applicant was to be permitted to remain in Australia there must be no risk of recidivism: a test which could almost never be met.

66    This is, in effect, a repetition of the failed argument advanced in an earlier appeal to the Full Court in Tewao. The position here, as in Tewao, was that no such “test” was applied by the Minister. Rather, on the facts before him, the Minister concluded that, although the risk of this applicant re-offending was low, it was not in the national interest to accommodate that, or indeed any, such risk.

67    This ground fails.

Orders

68    The application should be dismissed with costs.

Associate:

Dated:    24 February 2014