FEDERAL COURT OF AUSTRALIA

Contreras v Minister for Immigration and Border Protection [2014] FCA 912

THE COURT ORDERS THAT:

1.    The Application is dismissed with costs.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    On 19 December 2013, the Administrative Appeals Tribunal (the Tribunal) affirmed a decision of a delegate of the First Respondent (the Minister) to cancel the Applicant’s Return (Residence) Class BB Subclass 155 (Five Year Resident Return) visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (the Act).

2    These proceedings were commenced on 4 June 2014. By an Originating Application filed in Court on 20 August 2014, the Applicant sought an order quashing the decision of the Tribunal and mandamus directed to the Tribunal to rehear and re-determine his application in accordance with law. For the reasons that follow, that application is dismissed with costs.

Legislative Structure

3    Section 501(2) of the Act provides:

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.

(Emphasis added.)

4    For the purposes of s 501, a person does not pass the character test if a person has a substantial criminal record as defined by sub-section (7): s 501(6)(a). Section 501(7) relevantly provides that “[f]or the purposes of the character test, a person has a substantial criminal record if … (c) the person has been sentenced to a term of imprisonment of 12 months or more …”. The Applicant conceded that he failed the character test. However, where a person fails the character test, the Minister retains a discretion whether to cancel the visa: see s 501(2) extracted at [3] above. This application concerns the way in which the Tribunal addressed that question.

5    Section 499(1) of the Act gives the Minister power to give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. A person or body must comply with a direction under subsection (1): s 499(2A). On 25 July 2012, the Minister made Direction No 55 under s 499 of the Act entitled “Visa refusal and cancellation under s 501”.

6    Direction No 55 comprises a number of sections. Section 2, entitled “Exercising the Discretion”, provides:

7.    How to exercise the discretion

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

a)    must take into account the considerations in Part A 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.

(Emphasis added.)

7    That section directs attention to paragraph 6.3 of Direction No 55 which relevantly provides:

6.3    Principles

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

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

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

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

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

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

8    Next, paragraph 8 explains how the relevant considerations are to be taken into account:

8.    Taking the relevant considerations into account

(1)     Decision-makers must take into account the primary and other considerations relevant to the individual case, noting that there are differing considerations for visa holders and visa applicants as articulated in Parts A and B. …

(2)     In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

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

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

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

9    The Applicant was a visa holder and therefore attention is directed to paragraph 9 of Direction No 55 which sets out the primary considerations as follows:

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

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

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

c)     The best interests of minor children in Australia;

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

10    Each consideration is then separately addressed. Relevantly, Direction No 55 continues:

9.1    Protection of the Australian community

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

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

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

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

…

Paragraphs 9.1.1 and 9.1.2 elaborate on the factors that a decision-maker must consider in relation to 9.1(2)(a) and 9.1(2)(b).

11    Paragraph 10 of Direction No 55 details “Other Considerations” for visa holders that must be taken into account, including relevantly in this case:

1.    the effect of cancellation on the Applicant’s immediate family in Australia; and

2.    the extent of any impediments that the Applicant may face in establishing and maintaining himself in the Philippines taking into account his age and health; whether there were substantial language or cultural barriers; and social, medical and/or economic support available in the Philippines.

Facts

12    The Applicant was born in the Philippines and is currently aged 34. He first arrived in Australia on 12 July 1995 when he was aged 15. He arrived with his parents, both of whom are now Australian citizens. His brother and sister also reside in Australia.

13    The Applicant is in a de facto relationship with an Australian citizen, and the couple have three children together, now aged 5, 8 and 10.

14    On 25 February 2013, a delegate of the Minister sent the Applicant a notice of intention to consider the cancellation of his visa because he did not meet the character test on the basis of his substantial criminal record (as defined by s 501(7)). Further information regarding possible visa cancellation was sent to the Applicant on 28 February and 20 March 2013.

15    On 3 October 2013, a delegate of the Minister determined that the Applicant did not meet the character test and that the Applicant’s visa should be cancelled. The following day a delegate of the Minister wrote to the Applicant informing him of the decision.

16    On 16 October 2013, the Applicant applied to the Tribunal to review that decision. On 19 December 2013, the Tribunal affirmed the delegate’s decision.

The Tribunal’s decision

17    The Tribunal summarised the Applicant’s criminal history at [4] of its reasons:

[The Applicant’s] criminal record is extensive, commencing in October 1996 when he was charged with the possession of cannabis, using cannabis, unlawful possession and theft. At that time he had been in Australia for just a little over one year and he was 16 years of age. From that date up until his last conviction in October 2011, [the Applicant] committed in excess of 120 offences. While some of those were relatively minor, there are also a number of significantly serious offences. The more significant offences are as follows:

•    20 February 1998 – trafficking heroin (two charges) – no conviction recorded but a youth supervision order made for nine months

•    9 October 1998 – possessing cannabis – handles/receive/retain stolen goods – traffic heroin and – use heroin – possess regulated weapon (two charges) – nine months detention in a youth training centre

•    22 February 1999 – intentionally cause serious injury – 15 months detention in a youth training centre concurrent with existing sentence

•    17 March 1999 – possess drug of dependence – seven days detention in youth training centre

•    15 July 1999 – possess cannabis – possess regulated weapon – no penalty imposed

•    13 March 2001 – possess regulated weapon – fined $750

•    23 April 2001 – altering prescription for drug – wilful damage to property – theft from shop – criminal damage – unlawful assault – sentenced to 4 months imprisonment wholly suspended – fined

•    24 August 2001 possession of controlled weapon without excuse – imprisonment 14 days wholly suspended

•    18 October 2001 – recklessly cause serious injury – assault with weapon – imprisonment 18 months

•    10 September 2003 – driving while suspended – possessing and using cannabis – one month prison sentence wholly suspended and fined

•    8 December 2003 – multiple drug offences – forging vehicle identifying number – failing to answer bail – handle/receive stolen goods – community based order for 12 months

•    10 June 2004 – several breaches of penalty orders – multiple fines and two sentences of one month imprisonment – several drug trafficking offences – imprisonment for up to 12 months – using heroin – drug trafficking offences – possession of unregistered firearm and ammunition without licence – imprisonment for 12 months – multiple fines for use and possession of drugs

•    13 June 2007 – possession of controlled weapon and possession of prohibited weapon – imprisonment two months wholly suspended and fine

•    25 June 2008 – possession and use of amphetamine – imprisonment for three months – deal in property suspected proceeds crime – imprisonment for three months wholly suspended for six months – breach of intervention order – imprisonment one month

•    13 November 2008 – driving while licence suspended – two months imprisonment – unlawful assault – assault with instrument – possession of controlled weapon without excuse – breach of suspended sentence – two months imprisonment

•    24 October 2011 – intentionally cause serious injury – prohibited possession of a firearm – traffic heroin – possess cannabis – imprisonment total term six years and four months

18    As noted earlier, the Applicant conceded, and the Tribunal found, that the Applicant did not pass the character test. Accordingly, the question for the Tribunal was whether the discretion to cancel the Applicant’s visa should be exercised: see s 501(2) extracted at [3] above.

19    After noting that it was obliged to comply with Direction No 55 (at [6] of its reasons), the Tribunal proceeded to summarise Direction No 55 at [7] to [12]. In particular, it referred to paragraphs 6.3(1) – 6.3(4) and 6.3(6) of the Direction (see [7] above), and then stated:

10.    Informed by the Principles to which I have referred above, I must take into account, in this case, the considerations in Part A of the Ministerial Direction. I am also required to determine whether the risk of future harm by a non-citizen is unacceptable. As is stated in paragraph 7(1)(b) of the Ministerial Direction: 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.

(Original emphasis.)

20    After referring to and citing from paragraphs 8 and 9 of Direction No 55 (at [11] and [12] of its reasons), the Tribunal then turned to analyse the primary and other considerations in paragraphs 9 and 10 of Direction No 55: at [13] to [79] of its reasons.

21    The first primary consideration, being the protection of the Australian community from criminal or other serious conduct, was analysed at [13]-[44]. The Tribunal considered:

1.    The principle that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens: at [13];

2.    The nature and seriousness of the Applicant’s conduct: at [14]-[26];

3.    The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct: at [27]-[44];

4.    The strength, duration and nature of the Applicant’s ties to Australia: at [45]-[54];

5.    The best interests of children in Australia: at [55]-[69];

6.    The effect on immediate family: [72]-[74]; and

7.    Impediments the Applicant may face if removed from Australia: at [75]-[79].

22    After considering the remainder of the primary and other considerations, the Tribunal turned to the balancing exercise under the heading “Weighing up the Considerations” and stated:

80.    The first primary consideration, the protection of the Australian community, weighs heavily in favour of cancelling [the Applicant’s] visa. His criminal offending, which commenced a little over one year after he arrived in Australia, has been ongoing, extensive and extremely serious. In fact, the seriousness has increased since the offending commenced such that [the Applicant’s] violent conduct has led to an attack with a kitchen knife which left the victim seriously injured and the shooting of one person, who it appears was lucky to have survived that incident. [The Applicant] has been convicted of numerous weapons offences since 2003.

81.    All of his offending occurred despite a number of sentences involving detention and two formal threats by the Minister to cancel his visa. Despite promises that he would reform and cease using drugs when threatened with cancellation of his visa, no sooner had the threat passed when [the Applicant] resumed his offending without concern for any other persons, including his children and partner, who he must have been aware would be affected by that conduct.

82.    I find that [the Applicant] presents an unacceptable risk to the Australian community should he remain in this country. Should he resume his violent reoffending, any risk of that occurring is unacceptable. According to the most recent assessment report which I had in evidence, made on 28 May 2013, [the Applicant] remains in the moderate risk category regarding violent recidivism. This risk will remain until such time as [the Applicant] has overcome his drug addiction. Although he is currently on a methadone program, he was detected as having used cannabis while in Fulham Correction Centre some 12 months ago.

83.    The second primary consideration, an assessment of the strength, duration and nature of his ties to Australia, must weigh in favour of not cancelling [the Applicant’s] visa. This consideration may have carried more weight except for the fact that he commenced offending soon after arriving in Australia and that, despite claimed strong ties to his family, partner and children, and former notifications from the Minister threatening to cancel his visa if his conduct continued, his offending continued unabated, and in fact escalated. Other than his immediate family, [the Applicant] does not appear to have any other significant connections to Australia.

84.    The third primary consideration, the best interests of children in Australia, which would weigh substantially in favour of not cancelling [the Applicant’s] visa, must be given less weight because it is conditional on [the Applicant] remaining drug-free. Should that not occur, the effect on his partner and children would undoubtedly be deleterious rather than of some benefit. The current evidence regarding [the Applicant’s] drug addiction is that the risk that he will resume a drug habit remains high. Furthermore, given [the Applicant’s] past behaviour and significantly long terms of incarceration, his interaction with the children has been minimal, most of it being in the course of visits while he was in prison. There was no evidence of [the Applicant] playing a positive parental role while outside of prison.

85.    As for the other considerations, which are generally given less weight than the primary considerations, the effect on [the Applicant’s] immediate family is most significant. The cancellation of his visa and his return to the Philippines will impact on his partner and their children. That would also cause significant pressure to be placed on [the Applicant’s] mother and father and other immediate family members to assist in supporting the children. I have also referred to some concerns about [the Applicant’s] health and job prospects on return to the Philippines. That evidence does not permit me to find that these considerations should be given significant weight.

86.    I find that the protection of the Australian community outweighs all of the other considerations which support [the Applicant] remaining in Australia. That is because of the nature and the seriousness of his offending and the consequences on the Australian community should he re-offend. His remaining in Australia poses an unacceptable risk. Despite having been warned on two prior occasions, in 2001 and 2005, that his continued offending would result in cancellation of his visa, it appears [the Applicant] has not stopped for one moment to consider what the effect might be on other persons, particularly his children.

(Emphasis added.)

23    The Tribunal concluded that the decision of the delegate to cancel the Applicant’s visa was the preferable decision and affirmed that decision: at [87] of its reasons.

Applicant’s SUBMISSIONS

24    The Applicant submitted that the Tribunal fell into jurisdictional error because it identified the wrong issue or asked itself the wrong question, as it failed to undertake the balancing exercise required by paragraph 7(1)(b) of Direction No 55. This includes a requirement to undertake a balancing exercise of the likelihood of future harm arising from the visa-holder’s conduct, the extent of the potential harm, and the extent to which any risk should be tolerated by the Australian community. This was the First Element of the Applicant’s Ground of Application.

25    In support of that contention, the Applicant submitted that the Tribunal’s decision in the present case “suffers from precisely that jurisdictional error” identified by North J in Williams v Minister for Immigration and Citizenship [2013] FCA 702 at [42]-[44]. It will be necessary to return to consider this decision. In his Originating Application, the Applicant stated that Williams confirmed that the balancing exercise in paragraph 7(1)(b) requires more than weighing up whether conclusions as to each of the necessary considerations weigh for or against cancelling the relevant visa. He submitted that the Tribunal, at paragraphs [80] to [86], weighed whether each of its conclusions on the relevant considerations was in favour of cancelling or not cancelling the Applicant’s visa, but failed to undertake the balancing exercise of potential harm and potential tolerance of that harm by the Australian community required by paragraph 7(1)(b) of Direction No 55. This approach was said to necessarily involve the Tribunal identifying wrong issues or asking itself the wrong question.

26    The Applicant further submitted that the failure to undertake the required balancing exercise informed and underpinned the Tribunal’s approach to the primary considerations and led the Tribunal into error. The Applicant identified two matters as demonstrating that error – that the Tribunal conflated the risk of the Applicant reoffending with the likelihood of future harm (at [43]-[44] of its decision) and the Tribunal determined the acceptability of the Applicant reoffending to the Australian community (at [44] and [82] of its decision) in place of the acceptability of the level of potential harm, properly balanced by other factors. This was the Second Element of the Ground of Application, as raised by the submissions.

27    The alleged failure to undertake the balancing exercise was said by the Applicant to have affected the exercise of the Tribunal’s power and meant that its decision was affected by jurisdictional error: Craig v South Australia (1995) 184 CLR 163 at 179.

Minister’s submissions

28    In relation to the First Element of the Ground of Application, the Minister submitted that the reasons of the Tribunal are entitled to a beneficial construction and that, at the outset, the Tribunal correctly identified the matters it was required to consider: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2.

29    Next, the Minister submitted that the Tribunal considered the question “whether the risk of future harm by a non-citizen is unacceptable” at [82] and [86] of its reasons. Further, in light of specific findings made by the Tribunal, the Minister submitted that the decision of the Tribunal does not reveal error of the type identified by North J in Williams, which was distinguishable on its facts.

30    In response to the Second Element, the Minister submitted that in considering the first primary consideration (the protection of the Australian community from criminal or other serious conduct), the Tribunal considered each of the relevant aspects of that consideration and did not conflate the risk of re-offending and likelihood of harm. Further, the Minister submitted that the Tribunal considered whether the conduct and the harm that would be caused if it were repeated, was so serious that any risk that it may be repeated may be unacceptable. The Tribunal then found that the harm which could be caused if the Applicant’s conduct were repeated was so serious that any real risk that it may be repeated would be unacceptable. The Minister submitted that was in accordance with paragraph 9.1.2 of Direction No 55.

31    Accordingly, the Minister submitted that the Tribunal did balance or weigh the relevant considerations (at [80]-[86]), concluding at [86]:

I find that the protection of the Australian community outweighs all of the other considerations which support [the Applicant] remaining in Australia. That is because of the nature and the seriousness of his offending and the consequences on the Australian community should he re-offend. His remaining in Australia poses an unacceptable risk.

analysis

32    It is against that background that the Applicant’s Ground of Application is to be assessed.

33    First, as the Minister submitted, the Tribunal asked itself the right question: see [10] of its reasons, extracted at [19] above. Next, I reject the Applicant’s submission that the present case “suffers from precisely that jurisdictional error” identified by North J in Williams at [42]-[44].

34    In Williams, the relevant part of the Tribunal’s reasoning was set out at [28]:

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

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

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

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

35    In considering that reasoning in the context of paragraph 7(1)(b) of Direction No 55, North J found:

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

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

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

36    A few matters must be noted. Unlike Williams, where the Tribunal made only a “passing reference to [7] of [Direction No 55]”, here the Tribunal specifically referred to paragraph 7(1)(b) at [10] of its reasons: see [19] above. Then, after specifically identifying paragraph 7(1)(b), the Tribunal went on to consider the question “whether the risk of future harm by a non-citizen is unacceptable” in various parts of its reasons. Before turning to that analysis, it is necessary to recall that paragraph 7(1)(b) forms part of paragraph 7 which sets out how the decision maker is to exercise the relevant discretion: see [6] above. As the paragraph provides, the exercise of the discretion is informed by the principles in 6.3. Relevantly, for present purposes, paragraph 6.3(3) provides:

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

37    What then did the Tribunal do? Under the heading “Weighing up the Considerations” (see also [22] above) it stated:

82.     I find that [the Applicant] presents an unacceptable risk to the Australian community should he remain in this country. Should he resume his violent reoffending, any risk of that occurring is unacceptable. According to the most recent assessment report which I had in evidence, made on 28 May 2013, [the Applicant] remains in the moderate risk category regarding violent recidivism. This risk will remain until such time as [the Applicant] has overcome his drug addiction. Although he is currently on a methadone program, he was detected as having used cannabis while in Fulham Correction Centre some 12 months ago.

…

84.    … The current evidence regarding [the Applicant’s] drug addiction is that the risk that he will resume a drug habit remains high. …

…

86.    I find that the protection of the Australian community outweighs all of the other considerations which support [the Applicant] remaining in Australia. That is because of the nature and the seriousness of his offending and the consequences on the Australian community should he re-offend. His remaining in Australia poses an unacceptable risk. …

(Emphasis in bold added.)

38    Under the headings “Primary Considerations” and “Other Considerations” the Tribunal also stated:

23.    … I also accept the Minister’s contention that [the Applicant’s] conduct is of a nature and extent which presents an unacceptable risk of harm to the Australian community. It is a very significant factor in the exercise of the Minister’s discretion.

…

28.    There cannot be any doubt about the fact that should [the Applicant] engage in similar criminal conduct in the future, the nature of the harm that could be suffered by individuals or the Australian community is extremely serious. Upon release from prison, should [the Applicant] resume his drug habit, which would most likely lead to drug trafficking given that his opportunities for full time employment following release appear to be remote, it is foreseeable that he would once again arm himself for protection as he claimed he did in the past. Having unlawful access to firearms is of grave concern in this case. In fact, the harm which could be caused if his conduct were repeated is so serious that any real risk that it may be repeated would be unacceptable.

…

43.    There cannot be any question about the fact that despite the rehabilitation programs in which [the Applicant] has participated, there remains a real risk of recidivism. The risk is not merely speculative or fanciful. Furthermore, although quantitatively that risk has reduced from high to moderate, it nevertheless remains significant. In fact, it appears entirely dependent on whether [the Applicant] is able to overcome his drug addiction. At the present time, he has not done so. He remains on a methadone program. The evidence before me also indicates that when under pressure, [the Applicant] resorted to using cannabis in prison despite being fully aware of the regular random drug testing conducted in that environment. Also, the VIP program identified boredom and financial difficulties as significant risk factors. Although [the Applicant] has been offered a job on his release from prison, that work is for one day per week only. He admitted in cross-examination that his earnings from that work would not be sufficient to sustain him, his partner and four children. Furthermore, he would have much spare time on his hands. In these circumstances, I find it is accurate to conclude that [the Applicant], when released back into the community, nevertheless presents as a very real risk of reoffending.

44.    The Minister also contended that due to the extent and seriousness of the crimes committed by [the Applicant] and in particular the numerous violent offences involving use of a weapon including firearms, the consequences of him reoffending are extremely grave. In my opinion, the evidence supports that contention and I find that any risk of him re-offending is wholly unacceptable to the Australian community.

…

68.    … the most recent report indicating [the Applicant] remains at least at a medium risk of reverting to his criminal activities once released from prison…

…

74.    While I accept the evidence regarding the effect of the visa cancellation on [the Applicant’s] partner and their children, given the substantial risk which remains that [the Applicant] will revert to his former criminal behaviour, and the fact that realistically, [the Applicant] has had limited contact and involvement with his immediate family, including his children, it is likely that little will change should [the Applicant’s] visa be cancelled.

…

78.    … In fact, his history of criminal offending, which is likely to be the best indicator of his future conduct, discloses that as soon as he is released from detention, he has slipped back into drug using and dealing, and also violent conduct. That has occurred despite [the Applicant] completing a number of courses and making promises that he would not reoffend. Clearly, his risk of reoffending remains real and the probability of that occurring is moderately high. In fact the evidence discloses that the risk of reoffending remains whether [the Applicant] remains in Australia or whether he is returned to the Philippines.

(Emphasis in bold added.)

39    As is readily apparent, the position here is distinguishable from that considered in Williams. In Williams, the Tribunal did not ask or consider the relevant question (see [42] of the decision extracted at [35] above). In the present case, the Tribunal asked itself the right question. It specifically referred to paragraph 7(1)(b) at [10] of its reasons: see [19] above.

40    Here, the Tribunal then went on and addressed the question “whether the risk of future harm by a non-citizen is unacceptable”. In my opinion, the Tribunal found that the risk of future harm was unacceptable at [86]. And, no less importantly, the Tribunal also referred to that matter at [23], [28], [43], [44], [78] and [82] of its reasons in the passages which are in bold and extracted at [37] and [38] above. The reasons of the Tribunal are meant to inform and must be read as a whole: Wu Shan Liang at 272. The reasons, read fairly, demonstrate that the Tribunal started and finished with the right question and, in doing so, exercised the discretion in the manner prescribed by paragraph 7 of Direction No 55. If the Applicant’s submissions were accepted, the practical result would be that a decision maker must consider a fact or matter under paragraph 7(1)(a) and then separately consider that fact or matter (to the extent that is relevant) again, at a different time and in a different place, under paragraph 7(1)(b). That submission is rejected to the extent that it suggests that there is some prescribed method or formula of recording the decision making process. Paragraph 7(1), informed by the principles in paragraph 6.3, says nothing about the form or content of the decision record. It is directed at how the decision maker exercises the discretion. Here, in my opinion, the decision maker exercised the discretion in accordance with paragraph 7(1) including, in particular, sub-paragraph 7(1)(b). The decision of the Tribunal does not reveal error of the type identified by North J in Williams: see also Lesianawai v Minister for Immigration and Border Protection [2014] FCA 402 at [40]. The First Element of the Ground of Application does not assist the Applicant.

41    The Second Element of the Applicant’s Ground of Application was that the Tribunal’s failure to undertake the required balancing exercise informed and underpinned the Tribunal’s approach to the primary considerations and led the Tribunal into error. The Applicant identified two matters as demonstrating the Tribunal’s error in its analysis and conclusion on the first primary consideration – that the Tribunal conflated the risk of the Applicant reoffending with the likelihood of future harm (at [43]-[44] of its decision) and the Tribunal determined the acceptability of the Applicant reoffending to the Australian community (at [44] and [82] of its decision) in place of the acceptability of the level of potential harm, properly balanced by other factors.

42    As can be seen from the analysis at [32]-[40] above, the Tribunal did undertake the required balancing exercise when considering whether the risk of future harm by a non-citizen was unacceptable. However, did the Tribunal err in the manner suggested by the Applicant in its approach to the primary considerations?

43    First, the alleged conflation of the risk of reoffending with the likelihood of future harm. In considering the first primary consideration, the protection of the Australian community from criminal or other serious conduct, the Tribunal was required to consider first the nature and seriousness of the conduct to date and then the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct: paragraph 9.1(2) of Direction No 55, extracted at [10] above.

44    In relation to the second of those considerations, paragraph 9.1.2(1) of Direction No 55 relevantly provides:

(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 reoffending; 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).

45    At [14]-[26] of its decision, the Tribunal considered the nature and seriousness of the conduct to date, addressing the first limb of the first primary consideration. It then considered the risk to the Australian community, the second limb of the first primary consideration at [27]-[44]. It found that “the harm which could be caused if [the Applicant’s] conduct were repeated is so serious that any real risk that it may be repeated would be unacceptable”: at [28]. This addresses paragraph 9.1.2(1)(a) of Direction No 55. The Tribunal then considered whether the Applicant was likely to engage in further criminal conduct including the evidence as to both risk and rehabilitation (at [29]-[43]). At [43], the Tribunal found that the Applicant “presents as a very real risk of reoffending”. This addresses paragraph 9.1.2(1)(b) of Direction No 55.

46    The Tribunal then went on to conclude its assessment of the first primary consideration, protection of the Australian community from criminal or other serious conduct, finding that in light of the gravity of the consequences of the Applicant’s reoffending, “any risk of him re-offending is wholly unacceptable to the Australian community”: at [44]. This reasoning does not disclose a “conflation of the risk of reoffending with the likelihood of future harm”, but instead demonstrates that the Tribunal proceeded by separately considering each of the relevant aspects of Direction No 55. No error is disclosed.

47    The Applicant’s final contention in relation to the first primary consideration was that the Tribunal determined the acceptability of the Applicant reoffending to the Australian community (at [44] and [82]) in place of the acceptability of the level of potential harm, properly balanced by other factors. As submitted by the Minister, the Tribunal balanced or weighed the relevant considerations (particularly at [80]-[86]), and found that the level of potential harm meant that “[his] remaining in Australia poses an unacceptable risk”. The Tribunal found that “the protection of the Australian community outweighs all of the other considerations which support [the Applicant] remaining in Australia … because of the nature and the seriousness of his offending and the consequences on the Australian community should he re-offend”: at [86] (emphasis added). In my view, that reasoning demonstrates that the Tribunal considered the level of potential harm and balanced it against the other relevant considerations. The Second Element of the Ground of Application does not assist the Applicant.

conclusion and orders

48    For those reasons, the application is dismissed with costs.

49    Prior to, and at the hearing, the Applicant was represented by pro bono counsel. The Court is grateful for the assistance provided.

Associate:

Dated:    25 August 2014