FEDERAL COURT OF AUSTRALIA

Moana v Minister for Immigration and Border Protection [2014] FCA 1084

THE COURT ORDERS THAT:

1.    The applicant’s application for judicial review of the respondent’s decision dated 2 July 2014 to cancel the applicant’s Class TY Subclass 444 Special Category (Temporary) Visa pursuant to s 501(2) of the Migration Act 1958 (Cth) be dismissed.

2.    The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

1    The applicant (“Mr Moana”) is a citizen of New Zealand and the holder of a Class TY Subclass 444 Special Category (Temporary) Visa. This visa entitles him to remain in Australia indefinitely whilst he remains a New Zealand citizen. Mr Moana first came to Australia in 1990 and his most recent arrival was in 2009. Mr Moana has been convicted of several criminal offences in Australia, and sentenced on two occasions to terms of imprisonment: (1) in 1998 he was sentenced to a total effective term of imprisonment for six years with a non-parole period of four years’ imprisonment; and (2) in 2013 he was sentenced to a total effective term of imprisonment for 22 months with a non-parole period of nine months’ imprisonment. In 2007, the Department of Immigration and Border Protection (The Department”) formally warned Mr Moana that any further criminal convictions could result in the cancellation of his visa. After his conviction and sentencing to the further term of imprisonment in 2013, the Department sent Mr Moana a Notice of Intention to Consider Cancellation of Visa under s 501 of the Migration Act 1958 (Cth) (“the Migration Act”). On 2 July 2014, the respondent (“the Minister”) decided to cancel Mr Moana’s visa under s 501(2) of the Migration Act. Mr Moana has sought judicial review of that decision.

The grounds of review

2    The amended application for review raises two grounds:

1.    The Minister asked himself the wrong question in assessing whether to exercise his discretion to cancel Mr Moana’s visa under s 501(2) of the Migration Act in that he asked himself whether there was an unacceptable risk of harm to the Australian community by assessing that risk only by reference to Mr Moana’s past offending; and

2.    In exercising his power under s 501(2) of the Migration Act to cancel Mr Moana’s visa, the Minister failed to give consideration to the mandatory consideration of the risk of harm posed to the Australian community by Mr Moana.

The legislation

3    Section 501(2) of the Migration Act relevantly provides as follows:

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.

4    Section 501(6) of the Migration Act relevantly provides that:

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

…

    Otherwise the person passes the character test.

5    Section 501(7) relevantly provides that:

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

(a)    …

(b)    …

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

…

The Minister’s decision

6    The Minister gave written reasons for his decision. Under the heading “Character test”, the Minister referred to the two sentences to imprisonment that Mr Moana had received and concluded at [8] that, as a result of these sentences to imprisonment, Mr Moana “has a substantial criminal record”. The Minister found that Mr Moana “does not pass the character test” by virtue of s 501(6)(a) and s 506(7)(c) of the Migration Act and that Mr Moana had not satisfied the Minster that he passes the character test. This finding is not challenged by Mr Moana.

7    Under the heading “Discretion”, the Minister set out his reasons for exercising his discretion to cancel Mr Moana’s visa. The Minister stated at [9] that:

[He] was mindful of the Government’s commitment to using s 501 of the [Migration] Act to protect the Australian community from harm that may result from criminal activity or other serious conduct by non-citizens.

8    Under the subheading “Criminal conduct”, the Minister considered Mr Moana’s criminal history. The Minister noted at [10] that Mr Moana’s violent offences included two counts of armed robbery, aggravated burglary, robbery, blackmail with menaces, three counts of intentionally causing injury, four counts of assaulting police, assault with a deadly weapon and two counts of unlawful assault. The Minister considered these offences to be very serious. The Minister also noted that other offences committed by Mr Moana included three counts of false imprisonment, theft and kidnapping offences which he also considered to be serious.

9    At [11] and [12] the Minister set out more comprehensively Mr Moana’s “extensive” criminal history “including his offending in New Zealand”. The Minister then stated:

13. I consider the seriousness of Mr Moana’s offending has increased, in the light of the frequency of his offending, as well as his breaches of judicial orders. I take into account his ongoing disrespect for the laws of Australia and whilst some of the offending could be considered less serious, I note that kidnapping and offending against a 16 year old minor are serious offences, and that stalking, driving and drug offences are not condoned by the Australian community.

14. I also give consideration that Mr Moana received a number of prison sentences, which are a further indication of the seriousness of his offending as dispositions involving incarceration of an offender are a sanction of last resort for a Court to impose a sentence of imprisonment.

15. In summary, I conclude Mr Moana has engaged in various criminal offending, and I consider crimes involving the use of physical force and resulting in harm to another person are very serious and not in line with community values. I also consider false imprisonment, theft and kidnapping offences serious, as is offending against a minor – a vulnerable member of the community.

10    Under the subheading “Mitigating factors and risk of re-offending”, the Minister made the following observations and conclusions:

18. Further, Mr Moana is a repeat offender with a continual criminal history in Australia. He has shown disregard for judicial orders in that he was convicted for multiple counts of breach of intervention order and several counts of breach of suspended sentence. He has continued to re-offend, despite having been formally warned by the department of the consequences in terms of section 501 of doing so.

19. I have had regard to Mr Moana’s statements regarding the reasons why he had pleaded guilty to the recent charges, and why he had been unable to undertake the relevant rehabilitation course in prison, and also to his statements that he is deeply sorry for his recent and past offences and that he plans to resume his previous employment and to undertake a Link-Out programme upon release from prison. While he may have made progress towards rehabilitation and intends to address his behaviour on release, I continue to hold concerns regarding the extent of his rehabilitation and conclude that there remains an ongoing risk that he will re-offend in the future, given his criminal history.

11    The reasons for decision then deal with other considerations bearing upon the exercise of his discretion, including Mr Moana’s ties to Australia and the best interests of his children and grandchildren.

12    Finally, under the heading “Conclusion”, the following is recorded:

40. I considered all relevant matters including: (1) an assessment against the character test as defined by s 501(6) of the Migration Act 1958, and (2) all other evidence available to me, including evidence provided by or on behalf of Mr Moana.

41. I considered that Mr Moana has a long criminal history. In particular, he committed a number of violent offences in Australia. I consider such offending is very serious. I gave consideration to his general criminal history and find his offending is frequent, in addition to lack of respect and disregard he has to Australian laws.

42. …

43. I accept Mr Moana is remorseful and has made progress towards rehabilitation. In light of his criminal history I have reservations about the extent of his rehabilitation.

44. In reaching my decision I concluded that Mr Moana’s history of offending with repeated violent conduct, his disregard of judicial orders and of the Department’s previous warning, he represents an unacceptable risk of harm to the Australian community. I also concluded the protection of the Australian community outweighed any countervailing consideration in Mr Moana’s case.

45. Having given full consideration to all of these matters, I decided to exercise my discretion to cancel Mr Moana’s Class TY Subclass 444 Special Category (Temporary) Visa under subsection 501(2).

Analysis and decision

13    The principle submission made for Mr Moana was that the risk of harm that the visa holder poses to the Australian community is a mandatory relevant consideration in making a decision to cancel a visa under s 501 of the Migration Act, citing Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 in support. In Tanielu, Mortimer J held that the risk of harm to the Australian community posed by the subject of a visa review or cancellation is a matter that a decision maker must take into account in exercising the power under s 501(2). Her Honour reasoned at [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.

14    A similar view in relation to the exercise of power under s 501A of the Migration Act was expressed by Bromberg J in Gbojueh v Minister for Immigration and Citizenship (2012) 289 ALR 107; [2012] FCA 288. His Honour stated at [45] that the risk of harm to the Australian community was “so central to the subject matter dealt with by [that provision]” that it was unlikely to be “intended as an optional consideration at the Minister’s election”.

15    In Tanielu [2014] FCA 673, Mortimer J further stated at [155] that:

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.

16    Counsel for Mr Moana relied on this passage to argue that Tanielu is authority that the risk of harm can only be determined by an evaluation of the seriousness of any future harm which might be caused and the likelihood of that harm occurring. It was submitted for Mr Moana that the Minister made bare conclusory statements about the existence of a risk of harm by reference to Mr Moana’s past criminal offending and failed to ask himself the correct question, which was whether there was an unacceptable risk of future harm to the Australian community, determined by an evaluation of the seriousness of any future harm which might be caused by Mr Moana, and the likelihood of that harm occurring. It was submitted that the Minister had therefore failed to give consideration to a mandatory requirement, namely the risk of harm to the Australian community, because he did not conduct the evaluation required and, therefore, that his decision is affected by jurisdictional error. Alternatively it was argued that even if the risk of harm is not a mandatory consideration, there was still jurisdictional error by reason that the Minister failed to consider the risk of harm properly, because he did not evaluate the seriousness of any future harm which might be caused and the likelihood of that harm occurring.

17     It was submitted for the Minister that the decision in Tanielu is incorrect if, and to the extent that, it is authority that the Minister, in considering risk of harm, must evaluate the seriousness and likelihood of future harm in the exercise of the discretion conferred by s 501(2). It was argued that such an attempt to “structure” the wide discretion conferred by s 501(2) is not supported by the language of the provision, nor by the scope, purpose and objects of the power. Reliance was placed on Coderre v Minister for Immigration and Border Protection [2014] FCA 769 where Besanko J held at [36] that it was not essential for the Minister, when considering the risk of harm, to make a finding that precisely quantifies that risk. It was further submitted that if the risk of harm is not a mandatory relevant consideration in the exercise of the s 501(2) power, a finding by the Minister that the risk of harm is “unacceptable” cannot attract any obligation or requirement as to the process of reasoning by which that conclusion is reached.

18    It is unnecessary to reach a view on whether the risk of harm that the visa holder poses to the Australian community is a mandatory relevant consideration because, in the present case, it was plainly considered by the Minister. It is also unnecessary to reach a view on whether the decision in Tanielu is authority that the assessment of risk requires an evaluation of the seriousness of any future harm which might be caused and the likelihood of that harm occurring because, in the present case, on a fair reading of the Minister’s reasons for decision, the Minister did form a view about those matters in making his decision. Having considered the seriousness of Mr Moana’s past criminal conduct, the Minister made findings about Mr Moana’s risk of reoffending. The risk referred to was a risk that Mr Moana would commit further offences of a similar degree of seriousness as his past offences. In this regard, the Minister took into account: (1) that Mr Moana was a “repeat offender” with a continual criminal history in Australia; (2) that Mr Moana had shown disregard of judicial orders; and (3) that he had continued to re-offend after having been formally warned by the Department of the consequences for the potential cancellation of his visa. The Minister concluded that there “remains an ongoing risk” that he will re-offend in the future, given his criminal history and that Mr Moana’s risk of reoffending represented “an unacceptable risk of harm to the Australian community”.

19    It was argued strongly for Mr Moana that it was insufficient for the Minister to conclude that there “remains an ongoing risk” that he will re-offend in the future, without identifying the specific likelihood of that occurring. It was submitted that this consideration went to the question of discretion, as there was a balance to be conducted and the Minister must form a view about the weight to be given to matters. This was said to require some quantitative, as well as qualitative, assessment of the risk. It was asked rhetorically in oral submission how the Minister could weigh in the balance factors tending against cancellation if all he knows is that there is an ongoing risk without knowing anything further than that. The short answer is that the reasons for decision disclose that the Minister did weigh the factors.

20    The reasons for decision must be read as a whole and the statement that “there remains an ongoing risk that [Mr Moana] will re-offend in the future” must be considered in context. That context includes the Minister’s consideration of the factors which pointed to a likelihood of re-offending, i.e. Mr Moana’s history of offending and his continued offending after being warned about the potential consequences for his visa, as set out at [18] of the Minister’s decision. The Minister formed a view about the likelihood of re-offending after taking into account, amongst other things, the matters set out at [19] of his decision that might be regarded as countervailing considerations, including Mr Moana’s progress towards rehabilitation. The Minister formed the view that there was an ongoing risk which he considered unacceptable and that was a view that was open to him. The present case is distinguishable from Tanielu where Mortimer J found that there had been no evaluation at all of how likely it was that the applicant would engage in such conduct.

Conclusion

21    Both grounds of the amended application for judicial review must be rejected. No jurisdictional error has been demonstrated and the application for judicial review should be dismissed.

Associate:

Dated:    9 October 2014