FEDERAL COURT OF AUSTRALIA

Tanielu v Minister for Immigration and Border Protection [2014] FCA 673

THE COURT ORDERS THAT:

1.    The decision of the respondent dated 17 January 2014 to cancel the Special Category (Temporary) (Class TY) visa, subclass 444 (Special Category) visa of the applicant be quashed.

2.    The respondent pay the professional fees of both the applicant’s counsel, pursuant to r 4.19 of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

FACTUAL BACKGROUND AND SUMMARY

1        The applicant, Mr Michael Tanielu, was born in Samoa on 24 November 1976, and is a citizen of New Zealand. He entered Australia on 18 July 2005 as a holder of a Special Category (Temporary) (Class TY) visa, subclass 444 (Special Category), and has remained in Australia since that time.

2        Between December 2011 and July 2013 the applicant was convicted and sentenced in respect of property and sexual offences. For the latter offences he was committed to prison for some of the period of his sentence. His visa was cancelled by the Minister personally under s 501(2) of the Migration Act 1958 (Cth) (Migration Act) and in this Court he seeks judicial review of that decision.

3        For the reasons set out below, the Minister’s decision is affected by jurisdictional error and must be quashed.

FACTUAL BACKGROUND, EVIDENCE AND FINDINGS

4        The following matters are based on the evidence before the Minister and reproduced in the court book, together with material adduced in a supplementary court book and an affidavit filed on behalf of the applicant.

5        In the supplementary court book was a series of agreed documents, including email correspondence, disclosing communications between various departmental officials about the process by which the cancellation decision came to be made by the Minister personally and the timing of the cancellation decision by the Minister.

6        At the hearing, counsel for the applicant sought leave to rely on a further affidavit by the applicant, which deposed to two substantive matters: first, when and how the applicant became aware that the cancellation decision was to be made by the Minister personally, and second, what the applicant was told, and understood, about whether the Department, or someone on behalf of the decision-maker, would be speaking to the mother of the applicant’s fourth child about the possible cancellation of his visa. No objection was taken by the Minister to the reading of the affidavit and there was no cross-examination of the applicant about its contents.

7        The applicant moved to New Zealand from Samoa in 1998, and is qualified as a fitter and turner. He married in 2002 and has three children from that marriage who were aged seven, six and two years old at the time of the Minister’s decision. His wife and children are Australian citizens. He was estranged from his wife for some time from 2010 but at the time of the cancellation decision they had reconciled. His wife has spina bifida and receives a disability pension.

8        He is also father to a fourth child, who was born to the principal victim of the sexual offending. That child, who was aged one at the time of the Minister’s decision, is also an Australian citizen.

9        On 21 December 2011, the applicant was convicted in the Queensland Magistrates Court of some property offences he committed during August and September 2011. For these offences, the applicant received a sentence of 12 months’ imprisonment, wholly suspended for three years. On 19 July 2013, the applicant was convicted in the District Court of Queensland of a series of sexual offences, including nine counts of carnal knowledge of a child under 16 years of age and one count of indecent treatment of a child under 16 relating to one victim and one count of indecent treatment of a child under 16 relating to a second victim. These offences occurred between June 2010 and May 2011. On the nine counts of carnal knowledge, the applicant was sentenced to two years’ imprisonment, to be suspended for two years after the applicant served six months’ imprisonment. On the two counts of indecent treatment, he was sentenced to nine months’ imprisonment, to be served concurrently, and to be suspended for 12 months after serving three months’ imprisonment. The total period the applicant spent in prison for these offences was therefore six months.

10        All but one of the offences related to the applicant’s relationship with the sister of a friend with whom the applicant was living during this time, and who was 15 years old at the time of the offences. In this judgment I shall call the young woman M. The applicant was at that time 33 years old. The applicant continued his relationship with M after she had turned 16 and they subsequently had a child together. The sentencing remarks record that the applicant made full admissions about this offending conduct.

11        The remaining count of indecent treatment related to another girl, who was then 13 years old. The applicant was living with her family at the time of the offence. The offence occurred after the applicant had given the complainant a lift to a dance party, when the complainant was drunk. The Crown accepted a lesser charge of indecent treatment on the basis that the applicant had a reasonable but mistaken belief as to the consent of the complainant to his conduct.

12        Some time before any formal notification under the Migration Act, and while he was serving the six-month sentence of imprisonment imposed by the District Court, the applicant received a letter from the Department informing him that, because of his conviction “it may be relevant to assess your liability pursuant to s 501 of the Migration Act”. He was asked to give written consent to the Department obtaining information from the New Zealand Police, which he did. He also filled in a form entitled “Personal details form”. This form asked a number of questions about the applicant’s background, his family, children, employment history, health, contribution to the Australian community and why he wanted to stay in Australia. One part of the form inquired whether the applicant had any children under 18 from a relationship outside his marriage. The applicant here placed details of the child he had with M. The form then inquired whether the applicant authorised the Department to contact the custodial parent of that child. The applicant ticked the “‘yes’” box, and also answered a question about the level of contact he had with the child. This aspect of the form assumes some significance in the applicant’s second procedural fairness argument. Apparently in anticipation of what might occur, towards the end of August 2013 the applicant’s wife and two eldest children, and a family friend, wrote letters of support for him to the Department, requesting that he be able to stay in Australia.

13        A notice of the Department’s intention to consider cancelling his visa was sent to the applicant on 23 September 2013. This document contained information about the process leading to a decision whether to cancel the applicant’s visa, including opportunities for the applicant to provide information and submissions. It also contained some information about what would happen if his visa was cancelled, but did not say anything about rights of review of a cancellation decision. Enclosed with that letter was a copy of s 501 of the Migration Act, as well as Ministerial Direction No 55, made pursuant to s 499 of the Act, and entitled “Visa refusal and cancellation under s 501” (the Direction). The notification contained the following statements, which were relied upon by both parties in relation to the first procedural fairness ground:

Migration law and visa cancellation on character grounds

Under subsection 501(2) of the Act, the Minister for Immigration and Citizenship or a delegate of the Minister (“the decision-maker”), may cancel a person’s visa if the decision-maker reasonably suspects that the person does not pass the character test at subsection 501(6) of the Act, and the person does not satisfy the decision-maker that they pass the character test.

A copy of the full text of section 501 of the Act is attached for your information.

In considering whether you pass the character test and whether to cancel your visa under subsection 501(2) of the Act if you do not pass the character test, a delegate must follow directions given by the Minister under section 499 of the Act. A copy of Ministerial Direction No. 55 – Visa Refusal and Cancellation under s501 (“the Direction”) is attached for your information.

If the Minister decides your case personally, he is not required to give consideration to the matters discussed in the Direction, though he may choose to do so.

14        A further letter was sent to the applicant on 15 November 2013, inviting the applicant to respond to additional information received by the Department (being the sentencing remarks of the Magistrate in relation to the applicant’s property offences). The applicant responded to this in writing on 26 November 2013.

15        To determine the procedural fairness grounds it is necessary to set out my findings on the sequence of events concerning the decision by the Minister to consider the cancellation of the applicant’s visa personally, and the timing of the making of the cancellation decision itself.

16        The applicant was due for release from prison on 18 January 2014. The evidence disclosed that, since his release date fell on a Saturday, in accordance with the practice of Queensland Corrections, he was scheduled for release on Friday 17 January 2014. The evidence also disclosed communications between officers in the Department and “Queensland Detentions” about arrangements for the transfer of custody of the applicant should his visa be cancelled before his scheduled release time.

17        After receiving the notice of intention to cancel, the applicant contacted an officer within the Department. He believes he had three conversations with her. In the first conversation she explained the process to him. His evidence was:

She said that she would not be making the decision, her role was to collect the information and give it to someone else within the Department of Immigration and Border Protection (the Department) or some other group in the Department who would look at it and make a decision. At no time during any of my conversations with her did she suggest that the Minister would be the one to make the decision personally.

18        At some time shortly prior to 19 December 2013, it appears the Minister requested that he make the cancellation decision personally. The briefing note in evidence and addressed to the Minister bears a handwritten date in at least one place of 19 December 2013. On 20 December 2013 the officer in the Department to whom the applicant had previously spoken sent an email which relevantly stated:

The above client is currently being considered for possible visa cancellation. The Minister has requested that he personally make the decision on the case and the submission was forwarded to him on 19/12/13.

19        The introductory part of the “Key Issues” section in the submission to the Minister states:

A submission has been prepared for you to personally consider Mr TANIELU’s visa under s501(2). It is open for you to do so or to refer the character consideration to the Principal Character Decision Maker, Tom Wodak for decision. Mr Wodak has indicated that he would be minded not to cancel Mr TANIELU’s visa due to his view that the risk of reoffending would appear low and significant hardship would be caused to his wife. Given Mr TANIELU’s imminent parole dated of 18 January 2014, this case has been forwarded directly to you for consideration without escalating via the Case Escalation Register.

20        As would usually be the case, the submission attached a “Recommendations” page for the Minister to complete indicating his decision and matters for the Minister to note or discuss, together with a draft statement of reasons. The recommendations page states at the top:

Recommended you make a decision before 30 December 2013 to allow post-release planning to occur in time for Mr TANIELU’S possible release from prison on 18 January 2014.”

(Emphasis in original.)

21        A date stamp on the recommendations page of the submission indicates it was not received in the Minister’s office until on 14 January 2014 (although the date stamp is “2013”, clearly an error).

22        On 23 December 2013, the departmental officer sent the following email to the Queensland “Case Management and Removals” branch of the Department:

Just a further update. The Minister was unable to make a decision last week. He is now on leave (until 14/1 I believe) so the decision will be very close to EDR.

23        The parties confirmed at the hearing that the acronym “EDR” stands for estimated date of release.

24        Communications appear to have resumed between departmental officers and officers within Queensland Corrections in mid-January 2014, but without any indication of a decision from the Minister’s office.

25        By the middle of the day on 16 January 2014, the email communications reveal further inquiries being made within the Department about when a decision might be made, given the applicant was scheduled for release the next day. At 1.26 pm on 16 January 2014 the officer with carriage of the matter, and who had spoken to the applicant as he deposed in his evidence, sent an email which relevantly stated:

The submission is in the Minister’s office. We have impressed on the Minister’s staff the importance of the Minister making the decision asap, and no later than today, however as yet no decision has been made. The A/g Global Manager Character has been in regular contact with the Minister’s Dept Liaison Officer and now also with his adviser, Brendan Tegg. She advises that they understand the importance of a decision being made asap and are both trying to tie the Minister down. We will continue to check with his staff throughout the afternoon.

…

Sorry I can’t give you anything more definitive at this stage. Naturally I’ll let you all know as soon as a decision is made.

26        The applicant was scheduled for release at 4 pm on Friday 17 January 2014. A subsequent email from the departmental officer discloses when the Minister’s decision was made:

The Minister has decided to cancel Mr Tanielu’s visa this afternoon (45 minutes before he was due for release from prison). Qld Compliance will detain him on his release from Wolston Correctional Centre and I understand he is scheduled to be moved to MIDC as soon as possible. I understand that QLD staff will hand deliver the notification letter and package to him today. I also faxed him an interim notification today.

27        This chronology is consistent with the applicant’s affidavit evidence, which I accept. The applicant deposes to the departmental officer informing him at around 3.15 or 3.20 pm that the “papers were with the Minister and that he had not looked at them and that because he was very busy, he may not be able to do so before my release”. The applicant then deposed that at about 3.30 to 3.45 pm he was called up and told the decision had been faxed through and it was against him. The applicant was then transferred from prison to immigration detention that afternoon. He remains in immigration detention.

28        The reasons for decision signed by the Minister on 17 January 2014 do not differ in any respect from the draft reasons in the submission made to him in December 2013. As the applicant’s counsel observed, the headings in the reasons conform to the headings in the Direction, although it was submitted by both parties that the Minister was not bound by that Direction. I deal with that issue in more detail at [48] below.

29        Under the heading of criminal conduct, the Minister set out the applicant’s offending conduct and stated:

In total Mr TANIELU has been convicted of 11 chid sex related offences. His offending has involved two victims, one aged 15 and one aged 13. He had carnal knowledge of a 15 year old on nine occasions and also has a conviction for indecent treatment of the same victim. His conviction for indecent treatment of the 13 year old victim involved him inserting his fingers in her vagina when she was heavily intoxicated. I regard these offences as very serious and believe they are abhorrent to the Australian community. I also regard children as vulnerable members of the Australian community, which adds to the seriousness of Mr TANIELU’s offending.

30        He observed that, in relation to the multiple convictions for property offences, he regarded those offences as serious. In relation to the sentences imposed for the sexual offences, the Minister said:

Mr TANIELU received sentences of two years imprisonment for each of the carnal knowledge offences and nine months imprisonment for each of the indecent treatment offences. These sentences are an indication that the court viewed his offending as serious.

31        This paragraph is somewhat inaccurate by reason of its failure to recognise that the sentences were suspended save for a six-month period. This is an indication that the Minister may have misunderstood the manner in which the sentencing judge viewed the applicant’s culpability. I return to this issue below because other aspects of the sentencing remarks, if properly understood, should in my opinion also have informed the Minister’s assessment of the risk of harm to the Australian community if the applicant were permitted to remain in Australia.

32        The Minister then noted several mitigating factors in favour of the applicant, but concluded:

Despite Mr TANIELU’s remorse, his efforts at rehabilitation, the support he has in the community and his apparent good behaviour in prison [sic], However I find that there remains a risk, in light of his criminal history, that he may re-offend in Australia.

33        He then examined the applicant’s ties to Australia, recognising they were close, and recognising his contribution to the Australian community through employment and community activities. Similarly, the Minister recognised and said he gave primary consideration to the best interests of the applicant’s four children, noting also that the applicant’s wife suffers from spina bifida. He concluded that “it is in the best interests of each of Mr TANIELU’S four children that his visa not be cancelled so he can continue to fulfil a parental role with them”.

34        The Minister then gave further consideration to the fact the applicant’s wife suffers from spina bifida, accepting that cancelling her husband’s visa would cause her “stress and practical, emotional and financial hardship”. In terms of how the applicant might re-establish himself in New Zealand, the Minister noted that, notwithstanding the lack of family support for the applicant in New Zealand, the country had similar cultural values and comparable welfare, medical and other support services such that the Minister concluded the applicant would not face any significant impediment in re-establishing himself.

35        The Minister then expressed his conclusions briefly. Aside from reiterating his opinion the applicant would face no significant impediment in re-establishing himself in New Zealand, the only substantive parts of the Minister’s conclusions are the following:

In reaching my decision, I gave considerable weight to the serious nature of Mr TANIELU’s offending in Australia which includes sexual offences against two children, aged 13 and 15, who as minors I consider to be vulnerable members of the Australian community.

…

I find that he has close family ties to Australia and that his removal will impact significantly on his wife, especially in light of her health conditions. I also find that it is in the best interests of his four children that his visa not be cancelled. I find, however, that these factors are outweighed by the potential risk of harm to the Australian community should Mr TANIELU re-offend in a similar manner against children. I therefore concluded that Mr TANIELU represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations in his case.

36        Exercise of power personally by the Minister pursuant to s 501(2) precludes merits review of that decision by the Administrative Appeals Tribunal: see s 500(1).

37        On 18 February 2014, the applicant applied to this Court pursuant s 476A(1)(c) of the Migration Act for review of the Minister’s decision to cancel his visa.

RELEVANT ASPECTS OF THE LEGISLATIVE SCHEME

38        The power of the Minister to cancel a person’s visa is found in s 501 of the Migration Act. Relevantly, it provides:

Decision of Minister or delegate — natural justice applies

(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.

Note: Character test is defined by subsection (6).

(2) The Minister may cancel a visa that has been granted to a person if:

(a) the Minister reasonably suspects that the person does not pass the character test; and

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

(3) The Minister may:

(a) refuse to grant a visa to a person; or

(b) cancel a visa that has been granted to a person;

if:

(c) the Minister reasonably suspects that the person does not pass the character test; and

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

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

(5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).

Character test

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

(a) the person has a substantial criminal record (as defined by subsection (7)); or

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

(i) while the person was in immigration detention; or

(ii) during an escape by the person from immigration detention; or

(iii) after the person escaped from immigration detention but before the person was taken into immigration detention again; or

(ab) the person has been convicted of an offence against section 197A; or

(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

(c) having regard to either or both of the following:

(i) the person’s past and present criminal conduct;

(ii) the person’s past and present general conduct;

the person is not of good character; or

(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:

(i) engage in criminal conduct in Australia; or

(ii) harass, molest, intimidate or stalk another person in Australia; or

(iii) vilify a segment of the Australian community; or

(iv) incite discord in the Australian community or in a segment of that community; or

(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

Otherwise, the person passes the character test.

(7)    For the purposes of the character test, a person has a substantial criminal record if:

(a)    the person has been sentenced to death; or

(b)    the person has been sentenced to imprisonment for life; or

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or

(d)    the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or

(e)    the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.

39        The applicant does not dispute that he has a “substantial criminal record” for the purposes of s 501(7) of the Migration Act, and therefore does not pass the character test. The applicant’s claims instead go to the exercise of the Minister’s discretion pursuant to s 501(2).

40        Section 499 of the Act empowers the Minister to give binding directions about exercises of power or performance of functions under the Migration Act. It provides:

(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a) the performance of those functions; or

(b) the exercise of those powers.

(1A) For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.

(2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

(2A) A person or body must comply with a direction under subsection (1).

(3) The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.

(4) Subsection (1) does not limit subsection 496(1A).

41        The ministerial direction to which the notification of intention to cancel given to the applicant referred, and around which the matters in the Minister’s reasons for decision were structured, is an instrument made under s 499 of the Migration Act. Direction No 55 was made by the then Minister for Immigration and Citizenship on 25 July 2012.

42        As I noted in Williams v Minister for Immigration and Border Protection [2014] FCA 674 at [14], the Direction sets out in considerable detail the executive’s policy position in relation to cancellation decisions under s 501: the terms of s 499(2A) are the means by which government policy in this respect is given mandatory effect. The Direction constitutes a significant constraint on the manner in which the discretion conferred by s 501 is exercised, and it is the clear intention of the section read as a whole that such constraints may be placed around the exercise of the discretion.

43        Paragraph 6.2 of the Direction sets out what is described as “General Guidance” for decision-makers:

6.2 General Guidance

(1) The Government is committed to protecting the Australian community from harm as 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.

(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a person’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a person does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.

(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or 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 and Part B of this Direction.

…

44        In para 6.3 of the Direction there are set out the “Principles” to which para 6.2 refers. They need not be reproduced for the purposes of the issues in this proceeding. Paragraph 7 is entitled “How to exercise the discretion” and is a key part of the Direction. It provides:

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

a) must take into account the consideration in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or 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.

…

45        Under the heading “primary considerations”, four “primary considerations” are specified. The first, and presently relevant, specified consideration is protection of the Australian community. Paragraph 9.1 provides:

(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.

46        Paragraph 9.1.1 expands on the specified consideration of the “nature and seriousness of the conduct”. It provides:

(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 197 A 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.

47         Paragraph 9.1.2 of the Direction expands on the specified consideration of “risk to the Australian community”. It relevantly provides:

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 account:

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).

48        The parties both submitted the Minister was not bound by the ministerial direction made under s 499. That proposition is well established by many decisions of this Court including: NBMZ v Minister for Immigration and Border Protection (2014) 138 ALD 495; [2014] FCAFC 38 at [6] per Allsop CJ and Katzmann J; Tewao v Minister for Immigration and Citizenship (2012) 126 ALD 185; [2012] FCAFC 139 at [10]; Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580; [2004] FCAFC 327 at [31], [110].

THE APPLICANT’S GROUNDS OF REVIEW

49        Prior to the hearing of the appeal, leave was granted to the applicant to rely on an amended application for review. The amended application raises three grounds: two procedural fairness grounds and a ground relating to the manner in which the Minister’s decision dealt with an assessment of the likelihood of the applicant reoffending.

Alleged denials of procedural fairness

50        The applicant claims that he was denied procedural fairness in two ways. First, he contends the Department informed him the decision would be made by the delegate of the Minister, and the Minister failed to notify him that he would be making the decision personally. Had the applicant known this, he submits, he would have “conducted himself differently”. The unfairness is increased, the applicant submits, because at the time of the decision he was unrepresented.

51        The applicant submits that he was entitled to know the case he had to meet, which includes, he contends, who the decision-maker was, in fact, going to be. He relied on Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] per Gleeson CJ.

52        The Minister’s response to this ground was that the applicant was alerted in the notice of intention to cancel to the possibility that the Minister may make the decision personally and this was sufficient. He also contended there was no practical unfairness: the applicant’s evidence did not go so far as to suggest at the time he really appreciated the difference enough to have lost an opportunity to put on material he otherwise would have.

53        Second, the applicant contends that he was denied procedural fairness because the Department failed to make contact with M, in circumstances where, the applicant submits, he had been led to believe by an officer of the Department that such contact would be made. He submits he relied on that state of affairs and accordingly did not himself request M to put in any material in support of the non-cancellation of his visa. The absence of any material from the person who was both the principal victim of his most serious offending and the mother of his fourth child was, the applicant contended, a significant disadvantage in the consideration of the merits of his arguments for non-cancellation.

54        On this ground, the Minister responded by identifying a gap in the applicant’s evidence, to the effect that there was no evidence of a representation by the departmental officer that she would call M about the two matters the applicant thought M would or should be called about. Without a representation of this kind, the Minister submitted there was nothing upon which the applicant could rely for the purposes of the application of the principles in Lam 214 CLR 1; [2003] HCA 6.

Alleged failure properly to assess the applicant’s likelihood of reoffending

55        The applicant submits that the likelihood of the applicant reoffending was a mandatory consideration the Minister was bound, and failed, to take into account when deciding whether to exercise his discretion to cancel the applicant’s visa. This argument depends on a construction of s 501(2).

56        The applicant also contended that, even if the Direction offers no more than general guidance to the Minister when he makes a personal decision whether to cancel a visa under s 501(2), the Minister had failed to apply the Direction in the way he approached consideration of the risk imposed by the applicant to the Australian community because, although he had considered seriousness, he had not considered the likelihood of future harm (or, as a subset of that, the likelihood of reoffending).

57        The Minister’s response to this ground was that he had dealt with the likelihood of the applicant reoffending in a way which was sufficient for the lawful exercise of the power. The detailed analysis contemplated by the Direction was not binding on him.

CONSIDERATION

Notification of personal consideration by the Minister

58        Counsel for the applicant frankly conceded that, if the first procedural fairness challenge was based on nothing more than what was in the notice of intention to cancel letter and the fact the Minister made the decision, there would be no basis for this ground. The ground turns, he accepted, on the conversations the applicant had with the departmental officer.

59        The obligation to afford procedural fairness must attach to the exercise of a particular power, or the performance of a particular function. It is true that there is an antecedent administrative decision made about who, of the two repositories of the power in s 501, will exercise that power. On the evidence, that decision appears to have been made on approximately 19 December 2013 by the Minister informing relevant officers within the Department that he wished to consider the exercise of the power personally. No review is sought of that decision, and it is not suggested the obligation of procedural fairness attached to it.

60        Rather, it is suggested that notification of the Minister as the decision-maker attaches as part of the content of the procedural fairness obligation in the exercise of the s 501(2) power itself. As I understood the argument, that is not a submission of general application. It is not suggested that, in every case, the exercise of the s 501(2) power carries with it an obligation to inform a person affected whether the Minister personally will exercise the power. Rather, based on the principles in Lam 214 CLR 1; [2003] HCA 6, it is submitted that the conduct of the departmental officer led the applicant to refrain from putting further material to support his request that his visa not be cancelled.

61        In Lam 214 CLR 1; [2003] HCA 6 at [37] Gleeson CJ stated:

A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. Attorney-General (Hong Kong) v Ng Yuen Shiu was such a case. So, according to the majority, was Haoucher v Minister for Immigration and Ethnic Affairs. A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

62        Whether or not these principles could apply in the way the applicant suggests, this ground fails at an evidentiary level for two reasons. The proposition which the applicant must make out is that he was led to believe by a departmental officer that someone within the Department would be making the decision, and that he refrained from putting in material because he relied on, or accepted, the decision would be made in that way.

63        Subject to the considerations noted by Gleeson CJ in Lam 214 CLR 1; [2003] HCA 6 at [37], a person in the applicant’s position, without legal representation and in detention, is entitled at a practical level to take as accurate and rely upon information he is given by a departmental officer about a decision-making process under the Migration Act. The problem for the applicant is that the evidence does not establish the departmental officer made the representation for which he contends. I have extracted the applicant’s evidence at [17] above. It proves he was told positively that someone within the Department “or some other group” would be making the decision, and not the officer he was speaking with. This was, I find, in the context of that officer explaining to the applicant the limits of her role, rather than seeking positively to inform him who would be making the decision whether his visa should be cancelled. He had been told by this same officer, who was the author of the notification of intention to cancel, that the decision could be made by the Minister or the delegate. I am prepared to infer from the evidence that this officer did not know, when she had this first conversation with the applicant, who would be making the decision, but she was of course aware she had told the applicant it could be a delegate or the Minister.

64        The applicant’s evidence also proves a negative: namely, that he was not told the Minister personally would be making the decision. The latter is unsurprising since the evidence establishes the Minister did not inform the Department he wished to make the decision personally until shortly before 19 December 2013.

65        The evidence is insufficient in my opinion to establish a clear representation to the applicant that it would be a delegate making the decision whether to cancel his visa.

66        There is a second evidentiary problem. Even if a clear representation could be established, there is insufficient evidence that at the time the representation was made the applicant understood the significance of the Minister making the decision himself, and whether in fact the applicant refrained from submitting material he would otherwise have submitted.

67        The applicant’s evidence on this was:

Around this time there were two other prisoners I knew who were in a worse position than me, one had a sentence of two years, the other a sentence of four years. Both had received a NOICC but got warning letters from a delegate of the Minister, saying that no action would be taken at this time.

If I had known that the Minister was going to make my decision I would have done things differently, because I would have realised, even without a lawyer, that my case must be more serious than theirs’ and that my visa was in real trouble. I would have tried to get legal help and tried to get a report from a doctor or psychologist to say that I was not a risk of reoffending. Also, I would have made sure that I got a statement of support from the mother of my fourth child, the victim in the case that resulted in me going to prison.

Even if the worst happened, I thought that I would have the right to appeal my decision if it went against me. I had no idea that if the Minister made the decision, this was the end of me being able to put in more or better material. I did not know that I could not go to the Administrative Appeals Tribunal until I read the decision letter.

68        The Minister submitted the inference to be drawn from this evidence is that the applicant did not believe his visa was “in trouble” until he found out the Minister was making the decision personally, and then, because of that fact, he believed it was. I accept that inference is available from this evidence. In my opinion, this evidence is given by the applicant with the benefit of hindsight. The other evidence before the Court demonstrates the applicant submitted a great deal of material including medical evidence about his wife, and lengthy letters from himself about his circumstances. It demonstrates that the reason he did not submit anything from M is because he thought the Department would be contacting her, not because he believed a delegate would be making the decision. I deal with this under the applicant’s second procedural fairness ground. In my opinion, the applicant had, at the time he was dealing the departmental officer and putting together material to submit in support of his visa not being cancelled, no particular understanding of who would be making a decision about his visa. In his letter of October 2013 he addresses comments within that letter to “the decision maker”. Some of the correspondence from others in support of him is addressed to the departmental officer, which is consistent with the evidence that she had identified herself as the person through whom information could be submitted. Beyond that, the applicant’s evidence is not persuasive that, at the time, he really believed there was a difference in who made the decision, and refrained from submitting material.

69        Further, no connection is made by the applicant between his evidence about the other prisoners and his evidence that he would have done things differently. It is not suggested by the applicant that he refrained from taking particular action because of what had happened to the two other prisoners.

70        A further difficulty in this argument is that it seems to proceed on an assumption that personal consideration by the Minister of whether to cancel the applicant’s visa carried with it a higher risk of cancellation, such that more material needed to be supplied in order to counter that risk. There is no evidentiary basis for such an assumption. Although it can be accepted that there are at least two material differences in the two processes — one being access to merits review, the other being the binding nature of the Direction made under s 499 — neither of those differences are capable of supporting an assumption that higher quality or quantity material needs to be put before the Minister than before a delegate.

71        I accept that a finding of a breach of procedural fairness obligations in a given case involves a conclusion that, if the opportunity the law requires to have been afforded was afforded, there was a “rational possibility” the use of the opportunity by the persons affected could have made a difference to the outcome: see Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346; [2004] FCAFC 340 at [29], [32] per Black CJ. This assessment is only necessary, however, once the unfairness said to constitute the breach has been identified and accepted. In the present case, the applicant has failed on the evidence at that initial step.

Contact with M

72        This argument relied on the principles in Lam 214 CLR 1; [2003] HCA 6, but also the circumstances in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 and Muin v Refugee Review Tribunal (2002) 190 ALR 601; [2002] HCA 30. In each case, the central feature identified as constituting a denial of procedural fairness was an act or omission by a person involved in the decision-making concerning the process which would be followed, the matters which would be considered or the way in which the matters would be considered. In Aala 204 CLR 82; [2000] HCA 57 and Muin 190 ALR 601; [2002] HCA 30, the relevant statements were made by the member constituting the tribunal on review. In Aala 204 CLR 82; [2000] HCA 57, the Refugee Review Tribunal stated at the hearing it had read all the papers from previous applications and Federal Court proceedings, when in fact it did not have certain unsworn statements by the applicant which had been filed in earlier court proceedings, and which dealt with factual issues the Tribunal found the applicant to have concocted. In Muin 190 ALR 601; [2002] HCA 30, the Refugee Review Tribunal stated that it would look at all the departmental documents in the applicant’s case, when in fact an entire category of documents had not been forwarded to the Tribunal. In both cases, the High Court was satisfied that, if the applicants had been informed of the true situation, they would have sought to put further material or submissions before the decision-maker. In Lam 214 CLR 1; [2003] HCA 6, the applicant claimed unsuccessfully that, since he had been told by the Department that it wished to contact the carer of his children, there was a denial of procedural fairness when this did not occur. As I understood the applicant’s arguments in this proceeding, it was that the evidentiary gaps identified by the High Court in Lam 214 CLR 1; [2003] HCA 6 (see, eg, at [29] per Gleeson CJ) were filled in the current proceeding by the applicant’s affidavit.

73        Counsel for the applicant submitted that information or submissions from M herself, as both the victim of the most serious offending and the mother of the applicant’s very young fourth child, was likely to have an objective and persuasive character different from anything said by the applicant himself. That submission is plainly correct. There is no difficulty in accepting the proposition that the placing of such material before the Minister might have made a difference and given the applicant the possibility of a different outcome (see Stead v State Government Insurance Commission (1986) 161 CLR 141; NBNB v Minister for Immigration and Border Protection (2014) 138 ALD 455; [2014] FCAFC 39 at [4]-[5] per Allsop CJ and Katzmann J). In my opinion, the character and source of the material said by the applicant to be missing from the case he put to the Minister, because of what he believed the Department would do, is significant to the assessment of whether the series of events was procedurally unfair in a legal sense.

74        The applicant’s evidence is that, even without legal representation he knew M’s attitude would be central, as the victim of the sexual offences and as the mother of his fourth child “who was a very important person to take into account” in the decision. The applicant had indicated on the form he initially filled out that he consented to the Department contacting M. The applicant submits and I accept that it is reasonable for a person in the applicant’s position reading that form and giving consent to believe that the purpose of these matters being on the form is to facilitate the Department itself contacting such people directly. If the evidence stopped there, it would not be enough because all this form established was the facility for contact, should the Department decide to.

75        The applicant did not put M’s phone number on the form, as he did not have it. He obtained M’s number later from a friend and spoke to her. M told the applicant she “was happy for the department to ring her”. The applicant’s evidence then proceeded:

The next time I spoke to [the departmental officer] I told her this. She said this was good, and asked me for the number. Because it was in my cell I couldn’t just leave the phone and go back and get it. She said for me to give it to her the next time we spoke. This I did.

When I gave [the departmental officer] the number I believed and understood that she would ring [M] to ask her what she felt if my visa was cancelled and what impact cancellation would have on [M’s child].

76        This evidence is specific. It describes the content of the applicant’s conversations in a way which presents a reliable account of what was said. It was not tested in cross-examination and I accept it. The question is whether it is enough.

77        The Minister submitted the evidence about the applicant’s understanding of what the officer would do about contacting M was not enough. There was, the Minister submitted, no express representation by the departmental officer that M would be contacted and the applicant did not need to submit anything from her. Inherent in this submission was the proposition that, whatever the applicant believed, nothing said by the departmental officer to him could be seen as the source of his belief.

78        The submission about the need for a connection between the conduct of the departmental officer and the applicant’s state of mind is well made. That is because in authorities such as Aala 204 CLR 82; [2000] HCA 57, the Court looks to whether a person has been “misled”, by the way the decision-making process had been conducted: see, eg, Aala 204 CLR 82; [2000] HCA 57 at [103] per McHugh J, at [128] per Kirby J, at [211] per Callinan J; Muin 190 ALR 601; [2002] HCA 30 at [62] per Gaudron J, at [192] per Kirby J, at [252] per Hayne J, at [302] per Callinan J. The term “misled” in this context is not used by the courts in any pejorative or accusatory sense. It is used to describe a factual circumstance, directed at what induced a person to have a particular state of mind.

79        Although there is no express representation in the terms outlined in the Minister’s submissions, I am satisfied enough was said by the departmental officer to mislead the applicant. There were two conversations between the applicant and the officer. In the first, she confirmed to him that it was “good” that M was happy for the Department to speak to her. This endorsement, it should be remembered, was coming from the officer charged with the gathering of information on the applicant’s case — that is what she had told him from the outset. It was the officer who asked the applicant for the number. Again, this can reasonably be seen as a positive indication from the officer that there was a point to the applicant giving her M’s number. The only point could have been so the Department itself could contact her.

80        The applicant did not have M’s number with him during this conversation, it was in his cell. Again, the officer requested he give it to her next time — reinforcing to the applicant there was a point in him doing this. He followed through on this and gave M’s number to the officer the next time they spoke.

81        There is no evidence from the officer before this Court qualifying or contradicting what the applicant has said, and he was not challenged on any aspect of this evidence.

82        The applicant expressly deposes to having refrained from sending two letters to the Department which were from M and in his possession. They were exhibited to his affidavit, and he correctly describes them as “friendly”. In themselves they may or may not have carried much weight with the Minister, but they are a concrete example in the evidence of something the applicant refrained from doing because he understood the Department would be contacting M. More critically, he states that, if he had known the Department did not contact M, or did not intend to, he would have “contacted [M] myself and asked to send something to [the departmental officer].”

83        In a context where the applicant’s only contact with the Department had been through this officer, where she told him she was the person gathering the information for the decision-maker and where she had, indeed, acted as the conduit for all such information, her reaction and positive statements during these two conversations were in my opinion sufficient to have misled the applicant into believing the Department would contact M. M’s status as the principal victim of his sexual offending was an objective reason for him to act on the basis it would be the Department who contacted her, rather than him.

84        There was a denial of procedural fairness in the making of the cancellation decision by the Minister. Not being procedurally fair, his decision was made without jurisdiction and must be set aside.

The risk argument

85        The appellant submits that, even if the Minister was not bound by the Direction and used it as a guide to his decision-making, the risk of harm to the Australian community if the applicant were to remain in Australia was a relevant consideration to the exercise of the power under s 501 of the Migration Act, in accordance with the principles in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. He contends that assessing risk of harm involves examining two components — the seriousness of any future harm and the likelihood of it occurring. He submits that the Minister failed to understand and apply this consideration because he looked only at the seriousness of future harm or reoffending and did not assess the likelihood of it reoccurring.

86        At the hearing of the application, the Minister contended this ground could be disposed of on the basis that, whether or not there was a relevant consideration to the effect contended, the Minister’s reasons show he took it into account. When pressed by the Court to articulate a position on whether risk of harm to the Australian community is a relevant consideration in the exercise of s 501 power, the Minister sought and was granted leave to put in a short written submission on this issue after the conclusion of the hearing.

87        Those further written submissions contended that the risk of harm to the Australian community is not a relevant consideration. The Minister submitted the s 501 discretion was unfettered in express terms and broad in scope, such that no mandatory considerations should be implied as conditions on the valid exercise of the power.

88        In my opinion, the Minister’s submission should be rejected. The risk of harm to the Australian community is a relevant consideration in the exercise of the power pursuant to s 501(2). Further, even if I am wrong on the construction of s 501(2), in this particular decision the Minister chose to take risk of harm to the Australian community into account. It is a central feature of the ministerial Direction and it is self-evidently at least a permissible consideration in the exercise of the power under s 501(2). The Minister’s reasons for this decision show that he used the Direction as, in reality, the only guide to his decision-making. That being the case, the Minister was required to understand what was involved under Australian law in assessing risk of harm, and to adopt that approach in his decision. He failed to do that and his exercise of power in cancelling the applicant’s visa was without jurisdiction for that reason.

What is involved in assessing risk of future harm

89        The assessment of the risk of a person engaging in future conduct which may be harmful to others, or may constitute a criminal offence, is a familiar task to courts. The task may be undertaken in a wide range of circumstances, including in sentencing. In Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46 at [226], Callinan and Heydon JJ said:

Sentencing itself in part at least may be a predictive exercise requiring a court on occasions to ask itself for how long an offender should be imprisoned to enable him to be rehabilitated, or to ensure that he will no longer pose a threat to the community.

90        Outside sentencing, the assessment of risk of future harm posed by a person is an integral part of decisions which have a protective aspect.

91        In M v M (1988) 166 CLR 69, in the context of an appeal concerning the application of the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 to allegations of sexual abuse in custody and access disputes, the High Court observed (at 77):

in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access.

92        In the regulatory context, the “public protective purpose” of a disqualification power (see Registrar of Aboriginal and Torres Strait Islander Corporations v Matcham (No 2) (2014) 97 ACSR 412; [2014] FCA 27 at [165] per Jacobson J) means that the degree of seriousness of any contraventions, the propensity that the defendant may engage in similar conduct in the future and the likely harm that may be caused to the public are to be considered: see Australian Securities and Investments Commission v Adler (2002) 42 ACSR 80; [2002] NSWSC 483 at [56] per Santow J.

93        In decision-making under preventative detention regimes, the same phrase as that used in the ministerial Direction — “unacceptable risk” — is found in several state legislative schemes: see, eg, ss 7(1)-(2) of the Dangerous Sexual Offenders Act 2006 (WA); s 13(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld); s 9 of the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic).

94        In Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213, the Victorian Court of Appeal dealt with the Victorian legislation to which I have just made reference.

95        The Court summarised the task in determining “unacceptable risk” in this way (at [111]):

An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.

96        At [124]-[125], the Court described the difficulty inherent in prediction of risk:

Predicting the prospect of a person committing a criminal offence in the future is notoriously difficult. The Act recognises that the prediction of risk is in large part a matter for expert opinion which obliges the court to take into account any assessment report filed. The making of a prediction requires expertise which judges do not have. It calls for observation and assessment of those who commit the particular type of offence and a detailed knowledge of the types of factors, both personal and environmental, which increase or reduce the risk of further offending. The necessary expertise combines the ability to make a qualitative assessment of the individual and the ability to utilise the available quantitative risk assessment instruments. A risk assessment report would ordinarily be at the centre of any court evaluation of the level of risk.

… The degree of likelihood of the occurrence of the risk, considered in conjunction with the seriousness of the consequences if the risk eventuates, and any other matter the court considers relevant, will determine whether the risk is unacceptable.

97        At [129]-[130], the Court had observed that the placement of an offence on a continuum is not appropriate, because to do so strives for a greater degree of definition than the subject is capable of yielding, in circumstances where there are inherent difficulties in seeking to categorise sexual offences in terms of their gravity. The introduction of an approach based on “unacceptable risk” was designed to introduce flexibility to the evaluative process, based on considerations particular to the individual offence and offender. It went on (at [130]):

It is the gravity of the consequences of the offence which the offender is at risk of committing which will ordinarily be the critical factor in the assessment of whether that risk is “unacceptable”. That gravity will depend upon the offender’s likely conduct, which in turn depends upon an evaluation of the particular circumstances which pertain to that offender and not upon generalisations about the general character of the offence or the sentences which are attracted by a relevant offence.

98        The Supreme Court of Western Australia has also described the assessment of “unacceptable risk” as involving, amongst other things, assessment of the risk coming to fruition: see Woods v Director of Public Prosecutions (WA) (2008) 38 WAR 217; [2008] WASCA 188 at [86] per Steytler P and Buss JA.

99        In Fardon 223 CLR 575; [2004] HCA 46, which concerned s 13(2) of the Queensland Act, Callinan and Heydon JJ rejected the proposition that the phrase “unacceptable risk” was devoid of practical content. Referring to M v M (1988) 166 CLR 69, their Honours stated (at [225]):

The yardstick to which the Court is to have regard, of an unacceptable risk to the community, relevantly a risk established according to a high degree of probability, that the prisoner will commit another sexual offence if released, established on and by acceptable and cogent evidence, adduced according to the rules of evidence, is one which courts historically have had regard to in many areas of the law. The process of reaching a predictive conclusion about risk is not a novel one. The Family Court undertakes a similar process on a daily basis and this Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) said this in M v M of the appropriate approach by the Family Court to the evaluation of a risk to a child:

Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’, ‘an element of risk’ or ‘an appreciable risk’, a ‘real possibility’, a ‘real risk’, and an ‘unacceptable risk’. This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

100        Reference to these authorities is not for the purpose of equating the task under s 501(2) with the tasks with which the courts were dealing. Rather, there are two points to be derived from these references.

101        First, in decision-making which has a clear protective purpose, and which therefore involves an assessment of how a person may behave in the future, and whether that behaviour involves a risk of harm or a risk of repetition of prior conduct that has been impugned in one way or another, it is an inherent and indispensable part of any such assessment that the likelihood of a person engaging in such conduct in the future is considered. There is no reason to suppose any qualitatively different approach is to be taken in administrative decision-making where the exercise of a power is intended by Parliament to be protective of the safety and welfare of others.

102        Second, where a decision-maker chooses, as the Minister chose in the present case, to examine whether there is an “unacceptable risk” to the Australian community if a person remains in Australia, in order lawfully to determine the nature and magnitude of that risk, certain matters need to be considered. The term “unacceptable risk” is not without content in Australian law, and that content has some general features which can be derived from authorities such as those to which I have referred. One feature, the one upon which the applicant fastens in his third ground of review, is that the likelihood of a person engaging in conduct in the future which may cause harm needs to be assessed. The authorities to which I have referred make it clear that an assessment of likelihood of conduct occurring, or recurring, is assumed to be an integral part of determining risk.

103        It is well established that, where the harm which might be caused by future conduct is particularly serious, a lesser likelihood of the conduct occurring may be required for the risk to be identified at a level requiring a particular decision to be made. It is also well established that the likelihood of a person engaging in conduct in the future is affected by both static and dynamic factors: that is, factors which can be assessed objectively against statistical models to predict the risk category a person falls into, and dynamic factors personal to an individual which may moderate or exacerbate the risk the person otherwise could be said to pose. Those factors might include family support, alcohol and drug abuse patterns, employment and the like.

104        I accept the applicant’s submissions that an examination of the likelihood of a person engaging in future conduct which may cause harm is an essential part of any assessment of the risk that person poses to the Australian community. Even if risk of harm to the Australian community is not a relevant consideration, where the Minister chooses to consider that matter, and to do so by asking whether the risk is “unacceptable”, there are minimum components which Australian law recognises as integral to deciding if a risk of harm is “unacceptable”. One of those is the likelihood a person will engage in the conduct capable of causing harm.

How did the Minister approach the question of risk

105        As the applicant submitted, although he was not bound to do so, the Minister’s reasons follow the form of the Direction. In fact they do much more than that: they adopt the governing criterion set out in the Direction, namely, the assessment of whether the risk of harm posed by the applicant to the Australian community is unacceptable.

106        By both their headings and their content, the Minister’s reasons then work through sequentially the matters set out in the Direction. This is unsurprising given this was the way the briefing material to the Minister was structured and the way the draft reasons were prepared. The legal point that the Minister was not bound by the Direction finds no expression in the content or structure of the briefing notes given to him, nor in his reasons. Both proceed in the way one would expect to see a memorandum to and reasons of a decision-maker who was compelled to follow the Direction. The Minister did not consider any matter or factor outside those listed in the Direction.

107        Under the heading “Criminal Conduct”, the Minister expresses the view that he found the applicant’s conduct in relation to the sexual offences to be “abhorrent to the Australian community”. He said he regarded children to be vulnerable members of the Australian community and this added to the seriousness of the applicant’s conduct. These passages, together with the Minister’s recitation of the sentences imposed, form the basis for his conclusion expressed at the end of his reasons that he “gave considerable weight to the seriousness” of the applicant’s offending.

108        There is, as the respondent submitted and the applicant accepted, some active consideration by the Minister of the material personal to this applicant on which he bases his conclusion about the seriousness of his previous offending and, as he states in his conclusion, the possibility of him reoffending in a similar manner against children.

109        There are no express findings at all about the likelihood of the applicant reoffending. At [10] of the reasons the Minister concludes there “remains a risk, in light of his criminal history” that the applicant may reoffend in Australia. I do not consider that, by this statement, the Minister was engaging in any assessment of the risk of future harm. If the applicant was a recidivist offender, then a reference to his “criminal history” in an assessment of risk might be rational. In the present case, no such connection can be drawn, especially since this passage in the reasons comes after an acknowledgment by the Minister of the applicant’s remorse, his efforts at rehabilitation, his support in the community and his good behaviour in prison. The Minister does not say for example that the applicant’s offences were so serious that any risk whatsoever was too much of a risk. Nor, one might think, could he rationally have done so in light of the remarks of the sentencing judge and the surrounding circumstances of the offences. Contrary to the respondent’s submissions, it is not possible to see this statement in the reasons as any assessment of the likelihood of the applicant reoffending. It is nothing more than a reference to the nature of his offences, which, in common with all persons who have not satisfied the Minister they have passed the character test because of a specified conviction, is the very matter which has triggered the availability of the cancellation power in the first place.

110        In the penultimate paragraph of his reasons, the Minister expresses the conclusion to which I have referred about the risk of the applicant reoffending against children. This is in the context of having recited the factors which weigh in the applicant’s favour: his close family ties to Australia, the impact his removal will have on his wife especially in light of her health conditions, the best interests of his four children. The Minister expresses his conclusion in the language of the Direction — namely, that the risk is unacceptable, and protection of the Australian community has outweighed any countervailing considerations. It is notable that the Minister refers to the “potential risk” and says “should” the applicant reoffend. That is not the language of a decision-maker who has for himself assessed the likelihood of reoffending and reached a conclusion about it. It is the language of a decision-maker who is, at best, speculating about whether a person might reoffend. That is not the task in assessing risk of harm to the Australian community. The task is more concrete than that. It is rooted in an assessment of the characteristics of the particular applicant — not only his or her previous offences, but all aspects of his or her history, and the “dynamic factors” to which I have referred. Consideration of those factors must then be combined with consideration of what kind of offences the applicant might commit in the future — bearing in mind this may or may not be the kind of offences an applicant has committed in the past — with some evidentiary basis being disclosed for that consideration.

111        No such analysis can be seen, even at the most basic of levels, in the Minister’s reasons. In NBMZ 138 ALD 495; [2014] FCAFC 38 at [16], Allsop CJ and Katzmann J described the well-established principles concerning the approach to what is and is not said in a statement of reasons:

The written reasons of the Minister may, and generally will (subject to a contrary finding of fact), be taken to be a statement of those matters adverted to, considered and taken into account; and if something is not mentioned, it may be inferred that it has not been adverted to, considered or taken into account: Acts Interpretation Act 1901 (Cth), s 25D, s 501G of the Act and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [5], [37], [69], [89] and [133].

112        There is no genuine consideration on the merits about the likelihood of this applicant, in the circumstances facing him on release from prison, reoffending: see NBMZ 138 ALD 495; [2014] FCAFC 38 at [26], [153]; see also NBNB 138 ALD 455; [2014] FCAFC 39 at [122]-[125] and the authorities there cited. The Minister’s reasons do not engage at all with the likelihood on the material of further offending by this applicant. There is no active intellectual process (Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) 180 LGERA 99; [2011] FCAFC 59 at [44]) evident in the reasons relating to likelihood. Rather, there is a conclusionary assertion of “potential risk”.

113        Whether the explanation for the Minister’s failure to engage in matters so obviously central to the s 501(2) discretion can be explained by the compressed time in which he made the decision remains a matter of speculation. Whatever the explanation, the omission is clear.

114        The respondent’s submissions sought to justify the Minister’s reasoning process by inviting the Court to compare it with the steps set out in the Direction on this issue, and especially para 6.3(3) of the Direction. Such a comparison is beside the point. If the Minister’s reasons as expressed reveal that he has neither understood the need for nor engaged in an assessment of the likelihood of the applicant reoffending, no support can be gained from another part of the Direction which does not find expression in the reasons themselves.

115        The Minister’s reasons disclose no appreciation that the sentences given to the applicant for the offences which the Minister regarded as the most serious were suspended, save for a period of six months. No parole requirements were imposed by the sentencing judge and the Minister’s reasons do not advert to this fact. The sentencing judge said:

With respect to the issue of whether there ought to be a fixing of a parole eligibility date or whether, in fact, there should be a suspended sentence, I take the view that, given the fact that you are now aged 36 and that there seems to have been no prior history of offences of this kind – and, thankfully, no subsequent history of offences of this particular kind – that it is appropriate, in your case, to impose a suspended sentence.

116        This is not relied on as a separate error of any kind by the applicant. It is, however, indicative of the Minister’s failure to understand what is involved in a risk assessment. If the Minister had addressed the likelihood of the applicant reoffending, it is to be expected that one of the first sources he might turn to would be the remarks of the sentencing judge. That is because inherent in the sentencing process are assessments of the likelihood of reoffending. The Minister’s reasons disclose he was in other respects prepared to rely on the sentencing judge’s remarks about this applicant. As the applicant submitted, both the decision not to impose a parole period and the suspension of the majority of the sentences, together with the remarks made, make it clear the sentencing judge did not place the risk of the applicant of reoffending as very high. That is not to say the sentencing judge’s assessment had any necessary consequences for the view the Minister might ultimately form — but the absence of any references to these issues in the Minister’s reasons supports the proposition that he did not examine the likelihood of reoffending at all.

117        Having reached that conclusion, I turn to the legal consequences, if any, of that failure.

Is risk of harm a mandatory consideration?

118        The Minister accepts that, although the discretion in s 501(2) is expressed as unfettered by any specific considerations in the extent of the provision itself, the discretion is confined by the scope, subject matter and purpose of the provision and of the Migration Act, and the power may be conditioned on consideration of a matter which is implicit to the valid exercise of the power: see Peko-Wallsend 162 CLR 24 at 39-40 per Mason J.

119        In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 at [126], Heydon and Crennan JJ quoted from the judgment of Deane J in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375, as illustrating the approach usually taken to a broad discretion of the kind found in s 501(2):

… where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards.

120         It is also correct that a Full Court of this Court in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505; [2004] FCAFC 256 rejected the proposition that matters such as the circumstances surrounding the offences committed by an individual were a relevant consideration, in the Peko-Wallsend sense, in the exercise of the s 501(2) discretion. As the respondent noted in his supplementary submission, in Huynh 139 FCR 505; [2004] FCAFC 256 the Full Court observed that, if the Minister is able to consider a matter as broad as the national interest in exercising the s 501(2) discretion, it is hardly likely that matters as specific as the circumstances of an individual’s offending would be contemplated by the Migration Act as mandatory. It is important to note those observations in Huynh 139 FCR 505; [2004] FCAFC 256 were made in the context of a submission put to the Full Court that the Minister was obliged to take into account the remarks of the Court of Appeal in sentencing the visa holder, which dealt with mitigating factors in her offending.

121        Like Buchanan J in NBNB 138 ALD 455; [2014] FCAFC 39 at [117], I do not see Huynh 139 FCR 505; [2004] FCAFC 256 as standing for any broader proposition than that the factor as identified in that case is not a relevant consideration in the exercise of the s 501(2) discretion.

122        None of the foregoing contradicts the well-established proposition that, although the discretion is not fettered by any express limitation, it must nevertheless be exercised by reference to considerations identified from the subject matter, scope and purpose of the statute: see Drummond J in Jahnke v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 268; [2001] FCA 897 at [17]. What is critical then is the identification of the particular relevant consideration and how the subject matter, scope and purpose of the statute might be said to require that it be taken into account. Huynh 139 FCR 505; [2004] FCAFC 256 does not deny this is the correct approach.

123        The risk of harm to the Australian community is such a matter. Without assessment of this risk being an integral aspect of the exercise of the power in s 501(2), it is difficult to see how the power would otherwise stay within constitutional limits and advance the purposes and objects of the Migration Act in general, and of the cancellation provisions in particular.

124        Although the object of the Migration Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens (see s 4(1)), the cancellation and refusal powers in s 501 advance that objective in a particular way. In developing his contention against the risk of harm to the Australian community being characterised as a relevant consideration that conditions the power in s 501, the Minister sought to rely on statements from Kiefel and Bennett JJ in Huynh 139 FCR 505; [2004] FCAFC 256 at [74], which were based around s 4(1).

125        Purposive construction, as a generally required approach, must be applied with some care to provisions which strike a balance, especially a policy balance, between competing and perhaps conflicting interests.

126        In Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 at [5]-[7] Gleeson CJ cautioned against reliance on general purpose or object provisions in such circumstances because it is unlikely that the legislation pursues a single purpose at all costs; rather, a political compromise is likely to be at work. His Honour said (at [5]):

Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem.

127        That observation can be applied to the recitation and reliance on the statement of general purposes set out in s 4(1) of the Migration Act. The issue here is the doubt about the extent to which the cancellation and refusal powers in s 501 are unfettered in pursuing the general objects and purposes of the Migration Act, in circumstances where there are competing and conflicting interests as between an individual who may be excluded from Australia and the interests of the Australian community. Restating the general objects does not assist in resolving that tension.

128        Of more assistance is an examination of the role of the “character test” in s 501, and the text and context used to delineate this role. Unless a person fails to satisfy the Minister that she or he passes the character test, the cancellation and refusal powers are not enlivened. In that sense, it is the content of the character test which gives the best contextual indication of considerations which the statute makes relevant to the exercise of the power.

129        Each of the criteria set out in s 501(6) which may cause a person to fail the character test involve the protection of the Australian community. “Protection” is not a narrow concept and extends beyond preventing members of the Australian community from being threatened with, or the victims of, physical violence or conduct which is criminal under Australian law. It may involve, as s 501(6)(d)(iii) contemplates, ensuring that particular members of the Australian community are not vilified. It may also involve protection at a highly individual level: for example, if there is a risk a particular person in Australia would be harassed or stalked by a prospective visa applicant (s 501(6)(d)(ii)).

130        In relation to s 501(6)(d), a qualitative assessment of risk is an express part of the character test itself. Each of the items in s 501(6)(d) in that sense are identified by the Parliament as potential “harm” to the Australian community.

131        Subject to one matter I discuss separately, each of the other aspects of the character test aside from s 501(6)(d) deal with criminal conduct, whether directly by reliance on conviction for particular offences or having a substantial criminal record (paras (a), (aa), (ab) and (c)(i)) or indirectly because of association with those suspected to have engaged in criminal conduct (para (b)). By identifying each of these as attributes which can cause a person to fail the character test, the legislature has fastened on the prospect of a person engaging in conduct which by Australian domestic law is determined to be conduct from which the community should be protected, and for which people should be punished.

132        It is true, as the Minister’s submissions point out, that by s 501(6)(c)(ii), the Minister, the Tribunal or a delegate is empowered to form a view about a person not being of good character by reference to that person’s “past and present general conduct”. This, on the authorities, also carries with it the overriding concern for the protection of the Australian community. For example, this basis has been invoked where a person entered into a sham marriage and subsequently sought to perpetuate the sham by the production of forged documents: see Mujedenovski v Minister for Immigration and Citizenship (2010) 115 ALD 477; [2009] FCAFC 149. Even in such circumstances, the established test to be applied involves a determination, in the totality of a person’s circumstances, of how the person might conduct herself or himself in the Australian community if permitted to enter or remain. In Minister for Immigration and Multicultural and Indigenous Affairs v Godley (2005) 141 FCR 552; [2005] FCAFC 10, the Full Court (at [34]) quoted with approval the analysis of the trial judge, Lee J, on this issue:

The words “of good character” mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day to day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community but of continuing performance according to moral principle. A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later stage in life, be shown to be a person reformed and now of good character. (See: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432).

A finding that a person is “not of good character” requires the Minister to make a supervening determination after having regard to the matters set out in s 501(6)(c). The consideration of past and present criminal conduct and/or past and present general conduct provide indicia as to the presence or absence of good character but do not in themselves answer the question. The Minister must look at the totality of the circumstances and determine whether the person before him is distinguishable from others as a person not of good character, a question not to be confused with characterisation by conduct alone. (See: Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 197).

...

For a finding to be made under s 501(6)(c) that a person is not of good character it is necessary that the nature of the conduct said to be criminal, be examined and assessed as to its degree of moral culpability or turpitude. Furthermore, there must be examination of past and present criminal conduct sufficient to establish that a person at the time of decision is not then of good character. The point at which recent criminal conduct, (as the term “present criminal conduct” is to be understood), becomes “past criminal conduct” must be a matter of judgment. If there is no recent criminal conduct that circumstances will point to the need for the Minister to give due weight to that fact before concluding that a visa applicant is a person not of good character. (See: Baker at 194-195).

Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character continuing conduct must be demonstrated that shows a lack of enduring moral quality. Although in some circumstances isolated elements of conduct may be significant and display lack of moral worth they will be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct.

The foregoing is not a mechanical exercise and although expressed in different terms from those considered in Irving and Baker the task to be performed differs very little from that under the Act and regulations as they stood before amendment.’

133        It is apparent that what s 501(6)(c) requires by way of assessment and determination is also to be undertaken with a view to the protection of the Australian community. As I observed at [129] above, these authorities reinforce the proposition that “protection” is not to be given a narrow meaning. Even at its broadest, however, “protection” contemplates that there is some kind of harm, disadvantage, or unacceptable or undesirable consequence, arising from allowing a person to enter or remain in Australia, which the s 501(2) discretion can avoid if all the circumstances call for it. There must be a positive finding by the Minister that a person does not pass the character test before the precondition to the discretion to refuse or cancel a visa arises: see Godley 141 FCR 552; [2005] FCAFC 10 at [54]. The scheme of s 501(6) requires a positive finding by the decision-maker that there is the requisite kind of difficulty with how an individual might behave in Australia sufficient to enliven the discretion to refuse or cancel a visa.

134        In his supplementary submissions, the applicant submitted the cancellation and refusal discretion has always been concerned with potential harm to the Australian community. He referred to s 180A of the Migration Act, which was the predecessor to s 501 before the renumbering of the Act introduced by the Migration Legislation Amendment Act 1994 (Cth). The then s 180A was a response to the decision of Hell’s Angels Motorcycle Club Inc v Hand (1991) 25 ALD 659. In the second reading speech for the Migration (Offences and Undesirable Persons) Amendment Bill 1992 (Cth), which introduced s 180A, the Minister said “[t]his sort of legislation is designed to protect the nation.” Recognising the limited assistance to be derived from extrinsic material on construction issues such as this, it can at least be said there is no apparent inconsistency between this material and the conclusion I have reached on construction.

135        The proposition that the s 501 discretion is exercisable in order to protect the Australian community is one which can be found throughout the authorities in this Court: see, eg, Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65 at [104]; Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292; [2004] FCAFC 151 at [66]-[68] and the authorities there cited. In NBNB 138 ALD 455; [2014] FCAFC 39 at [85], Buchanan J noted the “unmistakeable prominence” given in the Direction to the need for decision-makers to consider the consequences for the Australian community of the grant or retention of a visa. There is a necessary relationship between the terms of this Direction and the construction of s 501(2), with which I deal below.

136        In NBMZ 138 ALD 495; [2014] FCAFC 38 at [28], Allsop CJ and Katzmann J described the “furtherance of the proper scope and limits” of s 501 as relating expressly to the protection of the Australian public. Their Honours noted (at [29]) that, in some qualified respects, an exercise of this power for the purposes of general deterrence may be seen as protective of other detainees and of the Australian public more generally, although “care needs to be taken” in how far such a consideration might be legitimate. For present purposes the importance of this observation is, again, the characterisation of the object of the power in s 501 as being the protection of the Australian community, or segments and individuals within it.

137        The conclusion I have reached is not inconsistent with NBMZ 138 ALD 495; [2014] FCAFC 38. At [6], Allsop CJ and Katzmann J contemplated that, on the Peko-Wallsend test, certain considerations may need to be taken into account. In that case, the Full Court identified one in respect of protection visa applicants: namely, the statutory consequences of visa refusal, in particular the prospect of indefinite detention. Despite dicta in this Court which might have been seen to preclude the conclusion the Court reached, the Court emphasised the need to examine the power in the framework of the Migration Act. Allsop CJ and Katzmann J also recognised (at [32]) that the evaluation of the objective seriousness of a person’s conduct was “central” to the Minister’s discretion under s 501 and was an evaluation “which the subject matter, scope and purpose of the Act might be seen to require him to undertake”. The seriousness of prior offending conduct is one of the two aspects of any assessment of risk and this statement in NBMZ supports, in my opinion, the consideration I have identified as conditioning the discretion in s 501.

138        Whether or not the same consideration would be implied into the exercise of power by the Minister personally under s 501A may involve a different analysis, since the exercise of that power is expressly predicated on the Minister’s opinion of what is in the national interest. That is a power exercisable only after a decision favourable to a person has been made by the Administrative Appeals Tribunal or by a delegate. It is, in that sense, a veto power. Different and broader issues may be at work then, especially given it is a wholly personal power. In contrast, the construction of s 501(2) must operate consistently as between exercises of power by delegates, by the Tribunal and by the Minister.

139        I note, however, that, even in relation to s 501(2), there are suggestions in the authorities that it may be constrained by mandatory considerations: see Sackville J in Lu 141 FCR 346; [2004] FCAFC 340 at [55], referring to the dissenting judgment of Wilcox J in Huynh 139 FCR 505; [2004] FCAFC 256 and endorsing its correctness. There was a similar suggestion of endorsement by Allsop CJ and Katzmann J in NBMZ 138 ALD 495; [2014] FCAFC 38 at [27]; see also Buchanan J in NBNB 138 ALD 455; [2014] FCAFC 39 at [118].

140        There is nothing in the judgments in Nystrom (2006) 228 CLR 566; [2006] HCA 50 which is inconsistent with this conclusion. There the High Court rejected the submission that a different consideration (namely, the kind of visa currently held by a person) conditioned the power in s 501. As Buchanan J observed in NBNB 138 ALD 455; [2014] FCAFC 39 at [121], the nominated consideration in Nystrom, which was rejected by the High Court, was quite different to those considered by the Full Court in NBNB and NBMZ. Indeed, at [128], Heydon and Crennan JJ identify two matters the Minister accepted as relevant considerations, by their inclusion in the applicable issues paper and the relevant ministerial direction:

Parliament has left it to the Minister to decide the matters which are relevant to whether a person who fails the character test should be permitted to remain in Australia. Considerations relevant to the exercise of the power depend on the nature, scope and purpose of the power, understood in its context in the Act. As Ministerial Direction No 21 makes clear, the Minister considers that two of the factors relevant to the exercise of the discretion are related to the protection of the Australian community and the expectations of the community.

141        Two final points should be made. First, there is an inconsistency between the Minister’s submission that the risk of harm to the Australian community is not a mandatory consideration under s 501(2) and the contents of Direction No 55. The terms of that Direction require this risk of harm to be the focus of decision-making under s 501, insofar as delegates and the Tribunal are concerned. In compelling (by force of s 499(2A)) a decision-maker to determine whether the risk of the harm to the Australian community is “unacceptable” (see para 7(1)(b)), and to do so by reference to the risk to the Australian community should the person commit further offences, assessing the nature of the harm and the likelihood of it occurring (para 9.1.2), the Direction imposes a mandatory consideration on those decision-makers.

142        By s 499(2), there is no power to make a Direction which is inconsistent with the Migration Act. Bearing in mind the effect of s 499(2A), a Direction which compelled decision-makers to take into account a matter which s 501(2), properly construed, did not require them to take into account, would be inconsistent with the Migration Act and an invalid Direction.

143        As s 499(2) makes clear, the Minister cannot by an executive direction transform a permissible consideration into a mandatory one, if the consideration is not otherwise of that nature by reason of the terms of s 501(2), construed by reference to the test in Peko-Wallsend. Although it may be that the purpose of s 499(2A) was to remedy problems identified in earlier decisions of this Court with a policy that sought to control the exercise of a discretionary power without any statutory authority to do so (see, eg, Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326; [2002] FCAFC 220 at [99]; cf Howells 139 FCR 580; [2004] FCAFC 327 at [128]-[129], [134]; Shaw v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 502; [2005] FCAFC 106 at [87]), s 499(2) makes express what would otherwise be implied: namely, that a direction or instruction given to a decision-maker cannot be inconsistent with the Act itself: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640.

144        Second, the suggestion in the Minister’s supplementary submissions that “irrespective of the risk posed” by a person, the Minister could decide it was not in the national interest for the person to remain in Australia may, without some refinement, be problematic. The “national interest” forms no express part of the discretion in s 501, in comparison to s 501A. In the latter provision, the formation of an opinion about the national interest is an integral part of the exercise of the power. The “national interest” may well be a permissible consideration in the exercise of the s 501(2) discretion, but there will be a point at which where reliance on the national interest, devoid from any considerations of “protection” (in the broad sense I have described) of the Australian community might be seen as exercising a discretion in a punitive fashion.

145        In Djalic 139 FCR 292; [2004] FCAFC 151, a Full Court of this Court set out at some length the principles designed to expose the existence of a line between punitive and non-punitive exercises of administrative power, while acknowledging implicitly that the line is neither bright, nor fixed.

146        At the level of general principle and putting to one side any specific statutory constraints, the character of the right of Australia as a sovereign state to deport an alien has been described thus:

The deportation of an unwanted immigrant (who could have been excluded altogether without any infringement of right) is an act of the same character: it is a measure of protection of the community from undesired infiltration and is not punishment for any offence.

(O’Keefe v Calwell (1949) 77 CLR 261 at 278 per Latham CJ.)

147        The purpose of protection of the community is what distinguishes the exercise of power from one which may be invalid by reason of Ch III of the Constitution: see Djalic 139 FCR 292; [2004] FCAFC 151 at [73]; see also Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 43.

148        In Djalic 139 FCR 292; [2004] FCAFC 151, after an examination of the authorities, and recognising the effect of those authorities as determining that, subject to certain limits, executive detention for the purposes of deciding whether to admit, remove or exclude from Australia of an alien was constitutionally permissible, the Full Court set out the following propositions, relevant to the current issue (at [66]):

Under Ch III of the Constitution, the adjudication and punishment of criminal guilt by reason of an alleged breach of a law of the Commonwealth appertains to the judicial power of the Commonwealth and cannot be entrusted to the Executive. If, therefore, Commonwealth legislation on its proper construction, purports to authorise the Executive to impose punishment for criminal conduct, the legislation, to that extent, will infringe Ch III of the Constitution.

…

Legislation conferring a discretion on the Executive to cancel the visa of a non-citizen or to deport a non-citizen is not characterised as punitive if it can fairly be said to protect the Australian community. This is so even where the pre-condition that must be satisfied for the exercise of the power is the conviction of the non-citizen for a criminal offence or the imposition of a minimum period of imprisonment.

149        In Djalic 139 FCR 292; [2004] FCAFC 151, cancellation for the purposes of general deterrence was seen by the Full Court as within the concept of protection of the Australian community because of the intended effect of other actual or potential offenders (at [75]), although their Honours expressly refrained from deciding whether, if a cancellation decision was made for the sole or dominant purpose of general deterrence, this would constitute punishment sufficient to offend against Ch III: see Djalic 139 FCR 292; [2004] FCAFC 151 at [76].

150        The need for the discretion to be based in protection was again emphasised by Allsop CJ and Katzmann J in NBMZ 138 ALD 495; [2014] FCAFC 38 at [28], where their Honours implicitly recognised, in my respectful opinion, the constitutional difficulties in reading what was said in Djalic at [76] too literally or broadly. At [29] their Honours endorsed the decisions in Re Gungor and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 225 and Re Sergi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 224, to which the majority in Djalic 139 FCR 292; [2004] FCAFC 151 also referred, thus continuing to doubt the proposition that, if deterrence is a sole or substantial purpose of the exercise of the s 501(2) discretion, it would be valid.

151        In this case, the Minister’s reasons do not speak of deterrence, and nor do the respondent’s supplementary submissions. My point in going to these authorities in some detail is to expose what I see as the flaw in the Minister’s supplementary submission that the s 501(2) discretion is so unconfined that there could be matters, under the rubric of “national interest”, which were divorced from any relationship to protection of the Australian community, recalling that “protection” is to be understood in its broadest sense. If that were the case, in my opinion it is likely the line between protection and punishment could be crossed and constitutional difficulties could arise.

152        No conclusive determination on these matters need be given in the present case: it is sufficient to reject the Minister’s supplementary submission that reliance on an unexplained label such as “national interest”, divorced from any notions of protection of the Australian community, could provide an example of a necessarily lawful exercise of the s 501(2) discretion, as the statute is currently expressed.

153        It is apparent I do not agree with the Minister’s submission that the decision of this Court in Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288 is wrongly decided. The reasoning in that case involved an exercise of the Minister’s personal discretion under s 501A and therefore an evaluation of considerations which may be required in determining the “national interest”, as well as those required in the exercise of the residual discretion under s 501A. In terms of the residual direction, the view taken by Bromberg J broadly accords with the view I have formed about the scope, subject matter and purpose of s 501(2), but I emphasise that case concerned a different statutory power.

Conclusion on the risk argument

154        The risk of harm to the Australian community posed by the subject of the visa refusal or cancellation is a matter a decision-maker, including the Minister personally, must take into account in exercising the s 501(2) power. That is because an assessment of such a risk is a necessary part of exercising the power for the purpose for which it was conferred: namely, protection of the Australian community, using “protection” in its broadest sense.

155        In turn, a risk of harm posed by an individual can only be ascertained by evaluating the seriousness of any future harm which might be caused and the likelihood of that harm occurring.

156        The Minister did not take this approach because, although he may have considered the seriousness of any future harm by forming a view about the seriousness of the past criminal conduct of the applicant involving children as vulnerable members of the Australian community, he undertook no evaluation at all of how likely it was the applicant would engage in such conduct again. Nor did he say that he considered even the smallest of risks to be enough given how serious the future harm would be. Instead he asserted “potential” risk as a conclusion.

157        Having failed to take risk of harm to the Australian community, as that concept is properly to be understood, into account, his decision was made without jurisdiction.

158        Even if I am wrong and risk of harm to the Australian community is not a relevant consideration conditioning the exercise of the s 501(2) power, it is apparent on his reasons (and by the adoption of the approach in his own ministerial Direction) that the Minister chose to make the risk of harm to the Australian community his principal consideration. He chose also to hinge his decision whether to cancel the applicant’s visa on whether that risk was “unacceptable”. Having done so, the Minister was required to adopt an approach to assessing that risk of harm which accorded with the way Australian law requires risk of future harm or offending to be assessed: namely by examining the seriousness of any future harm as well as the likelihood of it occurring. The Minister did not undertake this approach and his decision was without jurisdiction for that reason.

159        Where the Minister’s reasoning process is known and disclosed, if the requirements of s 501 had been observed and the Minister had considered the likelihood on all the material of the applicant reoffending, in my opinion it can be said the applicant has been deprived of the possibility of a successful outcome. see Lu 141 FCR 346; [2004] FCAFC 340 at [28]-[30] per Black CJ, see also Sackville J at [64]; NBNB 138 ALD 455; [2014] FCAFC 39 at [4]-[5].

CONCLUSION

160        On the two bases I have identified, the Minister’s decision to cancel the applicant’s visa is affected by jurisdictional error and must be set aside.

THE APPLICANT’S LEGAL REPRESENTATION

161        The Court was significantly assisted by, and extends its gratitude to, counsel who agreed to take a referral to advise and appear for the applicant, pursuant to r 4.12 of the Federal Court Rules 2011 (Cth). The applicant’s counsel should both be entitled to a costs order pursuant to r 4.19 of the Federal Court Rules.

Associate:

Dated:    4 July 2014