FEDERAL COURT OF AUSTRALIA

MZAGK v Minister for Immigration and Border Protection [2014] FCA 1190

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

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

REASONS FOR JUDGMENT

1    The applicant is a New Zealand citizen. He came to Australia in 1980. He held a special category (temporary) visa which permitted him to stay in Australia indefinitely whilst he remained a New Zealand citizen.

2    In 2006 the applicant was convicted in the County Court of Victoria of two offences relating to the trafficking of a commercial quantity of a drug of dependence and possessing chemicals with the intention of using them for the purposes of trafficking a drug of dependence. He was also convicted of possession of a weapon. Following these convictions he was sentenced to serve nine and a half years imprisonment with a requirement that he serve seven years before becoming eligible for parole.

3    In August 2012 a delegate of the former Minister for Immigration and Citizenship cancelled the applicant’s visa, acting under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).

4    The applicant sought review of this decision in the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal set aside the decision of the delegate: see VWLL v Minister for Immigration and Citizenship [2012] AATA 858.

5    On 20 May 2014 the present Minister considered the Tribunal’s decision and determined, pursuant to s 501A(2) of the Act, to set it aside and cancel the visa.

6    The applicant has applied to the Court for judicial review of the Minister’s decision.

THE MINISTER’S REASONS

7    The Minister provided a six page statement of his reasons for his decisions. Having regard to the way in which the applicant pressed his case it is necessary to set out a number of lengthy extracts from the Minister’s reasons. He commenced by recording the procedural history and referring to the relevant legislation. He then turned his attention to the national interest. Under that head he said that:

“11.    In assessing the national interest, I considered the nature and seriousness of [the applicant’s] convictions, which involved separate counts of trafficking a commercial quantity of a drug of dependence and possessing chemicals with the intention of using those substances for the purposes of trafficking a drug of dependence.

12.    At trial Judge Ross stated: ‘…the material satisfies me that you are well aware of the serious criminal implications of trafficking in these chemicals which were destined to produce large quantities of pure amphetamine. It is notorious that amphetamine use and addiction has become an entrenched social problem, its use has destructive effects on those individuals who use and abuse it.’

13.    In reviewing the decision to cancel [the applicant’s] visa, the Administrative Appeals Tribunal determined that: ‘The sentences … reflect the abhorrence of the community to persons who commit such offences and the harm that can be caused to others’

14.    [The applicant] commented that: ‘… The Minister can’t fault my character during the past year and cancelling my Visa isn’t going to serve the best interests of Australia, my daughters or my other family members.’

15.    The trafficking of commercial quantities of drugs of dependence and possessing chemicals with the intention of using those substances for the purposes of trafficking drugs of dependence has a significant impact on individuals and society. While the chemicals were precursors to the manufacture of amphetamines, if [the applicant] were to re-offend and such offending ultimately produced amphetamines which entered the community, vulnerable individuals and other members of the community would be subjected to significant harm and the community would be required to bear any related costs of policing, law enforcement, welfare and drug abuse treatment.

16.    Having regard to these considerations, and the points raised by [the applicant], I am satisfied that the cancellation of [the applicant’s] visa is in the national interest.”

8    The Minister next turned his attention to the exercise of his discretion. At [17] he said that:

“Having found that [the applicant] does not pass the character test and that it would be in the national interest to cancel his visa, I carefully assessed all of the information set out in the Issues Paper and considered whether to exercise my discretion to set aside the Tribunal’s decision and to cancel [the applicant’s] visa. While Ministerial Direction No. 55 – Visa refusal and cancellation under section 501 (“the Direction”) does not apply to the exercise of my powers under section 501A and in any event does not bind me, I was mindful of the Government’s commitment to using section 501 to protect the Australian community from harm that may result from criminal activity or other serious conduct by non-citizens.”

9    The Minister then dealt with a series of considerations which he said were relevant in the exercise of his discretion. Of present relevance are the Minister’s treatment of the applicant’s criminal conduct and factors mitigating the risk of him re-offending. Under the first of these heads the Minister recorded that:

“18.    On 12 July 2006 [the applicant] was convicted of being in possession of a commercial quantity (12.5 litres) of a drug of dependence, phenyl2propinane and was sentenced to nine years imprisonment. [The applicant] was also convicted of possession of a number of containers holding a quantity of phenylacetic acid and was sentenced to two years imprisonment. Both of these chemicals are precursors in the manufacture of amphetamines.

19.    [The applicant’s] sentences are a reflection of the court’s views of the seriousness of his offending. On the same day [the applicant] was convicted of Possess Longarm Without Licence and sentenced to one month imprisonment.

20.    At trial, Judge Ross found that [the applicant] was aware of the serious criminal implications of trafficking in these chemicals which were destined to produce large quantities of amphetamine. Judge Ross noted that [the applicant] was motivated by greed and his role would have produced ‘quite phenomenal financial returns’.

21.    During the Tribunal hearing, Senior Member Handley noted: ‘The sentences with respect to those offences, being 9 years and 2 years respectively, reflect the abhorrence of the community to persons who commit such offences and the harm that can be caused to others’ continuing with ‘I acknowledge that trafficking in drugs of dependence has devastating consequences on individuals, their families and the community at large. The harm to the Australian community of such activity is serious’. I adopt these remarks.

22.    The scale of [the applicant’s] offending and the potential harmful effects of such offending upon the community caused me to find that [the applicant’s] offending conduct is serious.

10    The Minister then turned his attention to factors which mitigated against the risk of the applicant re-offending. He referred to a report by a forensic psychologist about the applicant’s mental health at the time of his offending, the applicant’s exemplary record as a prisoner, his participation in rehabilitation programmes, the Tribunal’s finding that he was in the process of rehabilitation and did not present an unacceptable risk of harm to the Australian community and the applicant’s expressed remorse for his offending and a positive report from the applicant’s employer. The Minister continued:

“27.    Notwithstanding [the applicant’s] recent conduct and the above independent material which places him at a low risk, in light of [the applicant’s] criminal record I consider that there is a risk that [the applicant] will reoffend.

28.    In concluding that [the applicant] may reoffend, I am mindful of the fact that great harm could result to the Australian community if he were to do so.”

11    Having considered a number of other matters the Minister came to his ultimate conclusion. He said that:

“43.    I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act 1958, (2) whether cancelling [the applicant’s] visa was in the national interest and (3) all other evidence available to me, including evidence provided by, or on behalf of [the applicant].

44.    I concluded that cancellation of [the applicant’s] visa is in the national interests, given the serious nature of his offending and the need to protect the Australian community from such offending. I considered that his drug offences are so serious that any risk of reoffending is unacceptable.

45.    Evident countervailing considerations, including [the applicant’s] recent good conduct, his strong family and employment ties, the best interests of his niece and any challenges that he may face in New Zealand do not outweigh that conclusion.

46.    Having given full consideration to all of these matters, I decided to exercise my discretion to set aside the Tribunal’s decision of 13 November 2012 and cancel [the applicant’s] Class TY, Subclass 444 Special Category (Temporary) visa under subsection 501A(2).”

THE RELEVANT LEGISLATION

12    By s 501 of the Act the Minister, or a delegate of the Minister, may cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that the person passes that test: see s 501(2). The “character test” is defined in s 501(6). Relevantly, it provides that a person does not pass the character test if the person has a “substantial criminal record”. That term is defined in s 501(7). A person who has been sentenced to a term of imprisonment of 12 months or more is deemed to have such a record.

13    If a delegate of the Minister or the Tribunal determines not to exercise the power, conferred by s 501(2), to cancel a visa, the Minister is empowered by s 501A, to set aside such a decision and cancel the visa. This was the power on which the Minister relied in making the decision presently under review.

14    Section 501A of the Act provides that:

“Refusal or cancellation of visa – setting aside and substitution of non-adverse decision under subsection 501(1) or (2)

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision (the original decision):

(c)    not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or

(d)    not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;

whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test.

Action by Minister – natural justice applies

(2)    The Minister may set aside the original decision and:

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

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

if:

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

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

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

(3)    …

(4)    …

(4A)    Under subsection (2) or (3), the Minister may cancel a visa that has been granted to a person even if the original decision under subsection (1) was a decision not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person.

Minister's exercise of power

(5)    The power under subsection (2) or (3) may only be exercised by the Minister personally.

(6)    The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (3) in respect of the original decision, whether or not the Minister is requested to do so, or in any other circumstances.

Decision not reviewable under Part 5 or 7

(7)    A decision under subsection (2) or (3) is not reviewable under Part 5 or 7.”

NON-CONTENTIOUS MATTERS

15    A number of matters relating to the application of s 501A were not contentious. It was not disputed that:

    The Minister exercised the power personally: see s 501A(5).

    The Minister reasonably suspected that the applicant failed the character test: see s 501A(2)(c).

    The applicant had failed to satisfy the Minister that he passed the character test: see s 501A(2)(d).

    There was no relevant direction, made under s 499 of the Act, which had application to the exercise by the Minister of his powers under s 501A(2).

THE GROUNDS

16    In his amended originating application the applicant advanced two grounds. They were that the Minister had erred:

    By asking himself the wrong question in determining to exercise his discretion to cancel the visa. The error lay in him asking himself whether there was an “unacceptable risk of harm to the Australian community [and] by assessing that risk only by reference to the Applicant’s past offending”.

    By failing to give “proper, genuine and realistic consideration” to what was said to be the “mandatory requirement that he consider the risk of harm to the Australian community posed by the applicant.” This failure occurred because the Minister did not, properly, genuinely and realistically evaluate the seriousness of any future harm which might be caused by the applicant and the likelihood of that harm occurring.

These grounds, as developed, overlapped to a considerable extent.

THE WRONG QUESTION?

17    The applicant’s first ground was refined during argument. He contended that the Minister should have but did not evaluate the seriousness of any future harm which might be caused by the applicant, should he remain in Australia, and the likelihood of that harm occurring. This failure, it was said, supported an inference that the Minister had failed to ask himself the correct question, namely, whether there was an unacceptable risk of future harm to the Australian community were the applicant to be allowed to remain. This failure also meant that the Minister had failed to have regard to what was said to be a mandatory consideration in the exercise of his discretion.

18    The applicant drew attention to the structure of the Minister’s reasons. The Minister, in paragraphs [11] to [16] had explained why he considered that the cancellation of the applicant’s visa was in the national interest. In doing so he had had regard to the nature and seriousness of the offences committed by the applicant and formed the view that, were the applicant to commit similar offences in the future, he would thereby cause significant harm to the community. Nowhere in this section of his reasons did the Minister seek to assess the likelihood of such re-offending occurring.

19    There then followed paragraph [17] which separated the section on the national interest from the section dealing with discretionary considerations. It was in this latter section that the Minister expressed the conclusion that there was a risk that the applicant would re-offend: see at [27]. That conclusion was based on the Minister’s assessment of the applicant’s criminal record. This, the applicant contended, was an inadequate foundation. The Minister should have assessed and formed a view about the degree of risk of the applicant re-offending.

20    The national interest and the risk of recidivism threads were then drawn together in paragraph [44] where further reference was made to the seriousness of the offences committed by the applicant and the need to protect the community from such offending. The Minister there expressed the view that the offences committed by the applicant were so serious “that any risk of re-offending is unacceptable.”

21    At the centre of the applicant’s case was the proposition that, in exercising his powers under s 501A(2) of the Act, the Minister was bound to evaluate the seriousness of any future harm which the visa holder might cause to the community and the likelihood of that harm occurring. He placed particular reliance on two recent decisions of the Court in which it had been held that such an obligation fell on the Minister.

22    The first was Gbojueh v Minister for Immigration and Citizenship (2012) 202 FCR 417. In that case the applicant sought judicial review of a decision of the Minister under s 501A(2). Bromberg J held that, when exercising his power under s 501A(2), the Minister was bound to consider the potential for harm to the Australian community if the visa holder were permitted to remain in Australia and was so bound “both for the purpose of determining the national interest and the residual discretion”: at 427. See also at 427-9. His Honour regarded this consideration as being “so central to the subject matter dealt with by s 501A(2), that it is difficult to imagine that Parliament did not intend it to be a consideration the Minister [was] bound to take into account” for both purposes. He acknowledged that his conclusion was incompatible with that of the majority of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 but considered that it was consistent with that of the majority in Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346.

23    Lu involved the exercise of the Minister’s power under s 501A(2). The Minister had proceeded on inaccurate information relating to the seriousness of the visa holder’s criminal conduct. The Minister had been wrongly advised that the drug conviction of the visa holder related to “hard” rather than “soft” drugs. Sackville J (with whom Black CJ relevantly agreed) held that Parliament could not have intended that the Minister’s power could validly be exercised on the basis of inaccurate information going to a critical issue. In that case the misinformation related to the circumstances of the visa holder’s offending.

24    Bromberg J considered that it was implicit in the majority decision in Lu that the Minister was bound to have regard to an accurate account of the seriousness of the prior criminal conduct including “the circumstances in which the offending occurred, where those circumstances are relevant to the assessment of risk”: at 429.

25    Ultimately, his Honour’s preference for the Lu approach did not assist the applicant. Although his Honour found that the Minister had made a jurisdictional error by failing to take into account the applicant’s participation in a rehabilitation programme, this being a factor which the Minister was bound to take into account in considering the risk to the Australian community of allowing the applicant to remain in the country, the error was not material: cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. This was because the Minister had acted on the view (as he did in the present case) that any risk that the applicant might re-offend was unacceptable. The Minister had determined that such a risk existed by reference to the applicant’s past offending. The existence of that risk outweighed all countervailing considerations, including the applicant’s attempts at rehabilitation: see at 430-1.

26    Mortimer J took a similar view in the context of a challenge to a decision of the Minister, made personally, under s 501(2) of the Act but was more prescriptive about the content of the obligation which fell on the Minister. In Tanielu v Minister for Immigration and Border Protection [2014] FCA 673, whilst acknowledging that different statutory powers were involved, her Honour agreed with Bromberg J that, in considering the exercise of the residual discretion, the Minister was required to evaluate the seriousness of any future harm and the likelihood of that risk becoming manifest: see at [153]. Her Honour then concluded that:

“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.”

27    Her Honour was guarded about whether such an analysis could be applied to decision-making under s 501A. At [138] she said that:

“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.”

28    There are many similarities between ss 501 and 501A. Both serve “protective purposes” in the sense that they provide a statutory basis for excluding from Australia persons who may pose a risk of harming other residents. Both are activated if the Minister reasonably suspects that a person does not pass the character test and does not satisfy the Minister otherwise. At that point a discretion to refuse or cancel a visa arises.

29    There are, however, two important differences between the two sections. The first is that resort to s 501A depends on there having been a decision, under s 501, which is favourable to the visa holder or visa applicant. A delegate of the Minister or the Tribunal will have determined that an adverse decision was not necessary in order to protect the Australian community from future harm. Section 501A empowers the Minister to form and act on a different view on the ground that it is in the national interest so to do. As with s 501, the power is conferred in discretionary terms.

30    The broad scope of the power, conferred on the Minister by s 501A(2), has been remarked on in many cases. This was a matter to which Bromberg J drew attention in Gbojueh when he said (at [43]-[44]) that:

“43.    The authorities which have considered s 501A(2) (and in a similar context the reference to the national interest in s 501(3)), make it clear that the matters that the Minister may take into account in determining the national interest are largely matters for the Minister: Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 at [89] (French, O’Loughlin and Whitlam JJ); Huynh at [74] (Kiefel and Bennett JJ); Tewao v Minister for Immigration and Citizenship (2011) 125 ALD 57 at [12] and [32] (Katzmann J); Maurangi v Bowen [2012] FCA 15 at [70] (Lander J); and see also Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [61] (Gleeson CJ and Gummow J); Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 418-419 (Gaudron J), 502-503 (Kirby J).

44.    The exercise calls for a broad evaluative judgment. It calls for the Minister’s satisfaction in relation to a power that may only be exercised personally by the Minister: s 501A(5). Political responsibility and accountability is reposed in the Minister in relation to a subject matter of wide scope. All of that, strongly suggests that the Minister is left largely unrestrained to determine for him or herself what factors are to be regarded as relevant when determining whether the cancellation or refusal of a visa is in the national interest and thereafter whether to exercise the discretion conferred by s 501A(2).”

31    The authorities to which his Honour referred are instructive. Huynh was a case arising under s 501(2) of the Act. Although there was no “national interest” criterion in that sub-section, Kiefel and Bennett JJ considered that national interest considerations were imported by other provisions of the Act and that they limited the scope for requiring the Minister to have regard to particular matters when exercising his or her discretion. Their Honours said (at 523) that:

“The object of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens: s 4(1). To advance that object, provision is made for the removal or deportation from Australia of non-citizens whose presence is not permitted by the Act: s 4(4). If the Minister were able, consistent with the object of the Act, to consider a matter as broad as the national interest, in determining whether a person ought to be permitted to remain in Australia, it does not seem possible to imply some obligation on the Minister’s part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed. By way of illustration, the Minister may consider that the national interest requires that the commission of a particular type of offence will inevitably result in the cancellation of a visa, where there has been a sentence to imprisonment for the requisite term. To construe the section as requiring the Minister to consider factors such as the level of involvement of the visa holder in the offences would cut across that broad discretion.”

A majority of the High Court approved this passage in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at 606.

32    Their Honours’ approach was consistent with that of earlier Full Courts in Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 and Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326. In Gunner (at 409) the Full Court referred to the serious nature of the visa holder’s offences and continued:

“It is the seriousness of that conduct which has to be assessed in the national interest. Obviously enough, the national interest dictates that people who engage in sufficiently serious crime should not have the benefits of an Australian visa.” (Emphasis in original).

In Madaffreri (at 352) the Full Court said that:

“There may be circumstances in which the seriousness of a person’s criminal history will be sufficient to satisfy the Minister that the refusal of a visa is in the national interest.”

33    In Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 419 Gaudron J specifically contemplated that, in the context of s 501 of the Act, “the crimes or some of the crimes of which a person has been convicted may be of such a nature as to found a satisfaction that it is in the national interest to cancel his or her visa.”

34    These decisions emphasise the breadth of the power conferred on the Minister by s 501a of the Act. If the Minister is entitled to form the view that it is not in the national interest for a visa holder to be allowed to remain in Australia solely because of the serious nature of the crime or crimes of which the person has been convicted, it is difficult to discern a principled basis upon which the exercise of the power (either in determining where the national interest lies or in the exercise of the residual discretion) should be fettered by Court-imposed requirements that additional matters must be taken into account. The protective nature of the power is not compromised by such restraint. Indeed, it may be enhanced. The approach reflected in these authorities ensures that the Minister is not required to speculate on the degree of likelihood of the visa holder re-offending should he be permitted to remain in Australia. If the offence of which the visa holder stands convicted is open to be characterised as serious, the Minister will be able to decide (as he has done in the present case) that a risk exists and that any risk of re-offending is unacceptable and should be avoided.

35    If the Minister were required to pass beyond an assessment of the seriousness of the offending in determining whether it is in the national interest to exclude a visa holder or in exercising the discretion conferred by s 501A questions would necessarily arise as to precisely what additional matters the Minister should take into account and how tightly they should be defined. It is one thing to require the Minister to consider the potential for harm to the Australian community should the visa holder remain part of it; it is another, altogether, to prescribe the manner in which the Minister must undertake such a consideration.

36    It is not necessary, in the context of the present proceeding, to pursue these questions further. In Gbojueh, the Minister was not found to be in error, when exercising his power under s 501A(2), when he examined the nature of the applicant’s past offending and decided, on that basis, that there was some risk of the applicant re-offending. He was not prepared to countenance the exposure of the community to ‘any risk’. He determined to cancel the applicant’s visa. The Minister approached his assessment of the national interest and the exercise of his discretion in substantially the same manner in the present case. Even if it be assumed, contrary to my opinion, that the Minister was bound to have regard to the risk of harm to the Australian community posed by the applicant and to make an assessment of the likelihood of that harm occurring, it cannot, in my opinion, be concluded that the Minister failed to have regard to these considerations.

37    The applicant sought to suggest that, because the Minister’s reasons were divided into discrete sections relating to the national interest and the exercise of discretion, it could be concluded that he had not sought to deal with the risk of the applicant re-offending and the risk of harm to the Australian community in both sections.

38    I reject this argument. The Minister’s reasons are to be read as a whole and not zealously in pursuit of error.

39    A similar attack was mounted on the Minister’s reasons in Tewao v Minister for Immigration and Citizenship (2012) 126 ALD 185. It was rejected by the Full Court. In that case (which involved the exercise of power under s 501A(2)) the Minister had also devoted discrete sections of his reasons to dealing with the national interest and discretion. His treatment of the national interest had been confined to two paragraphs. In them, the Minister had regard to the seriousness and the nature of the offence committed by the applicant. This led to the conclusion that the Minister could not be satisfied that the risk of the applicant re-offending was negligible. When dealing with the exercise of his discretion the Minister again had regard to the nature and seriousness of the applicant’s offending and the risk of re-offending. Under the heading “Conclusion” the Minister said that:

“… I concluded that, given the nature and seriousness of [the applicant’s] past offending, it was in the national interest to cancel [his] visa. I found that I could not be confident that that he would not reoffend. Given the serious, violent and unprovoked nature of [the] offence, I considered any further offending by him potentially could be very serious. Consequently, I found that he represents an unacceptable risk of harm to the Australian community. I found that the protection of the Australian community outweighs [his] family links with Australia and any other countervailing factors …”.

The Full Court held that it was not open to the applicant to parse this paragraph into one statement about the national interest and other statements about discretionary factors: see at 196. Its words were to be given their ordinary meaning. On such a reading it was evident that the Minister had had regard to the seriousness of the applicant’s offending for the purpose of deciding where the national interest lay and how his discretion ought properly to be exercised.

40    When paragraphs [43]-[46] of the Minister’s decision are read together it is tolerably clear that he arrived at his conclusion in the present matter by a process of reasoning which was substantially similar to that employed in Tewao.

41    The Full Court identified the correct question, posed by s 501A(2)(e) to be: “Am I satisfied that the cancellation of the appellant’s visa is in the national interest?” The Court provided guidance as to the way in which the Minister might properly proceed in answering the question. It said (at 198) that:

“It is apparent from this discussion that: – (i) the minister must give separate consideration to the national interest, (ii) in so doing, the minister may properly have regard to the circumstances which underpin the failure to satisfy him that the applicant or visa holder passes the character test, (iii) the matters which result in a person failing the character test may also properly provide the foundation for the minister's satisfaction that it is in the national interest that that person's visa be cancelled but by no means necessarily do so, and (iv) however, ‘where the same conduct is relied upon for both purposes, there must be something in the nature, or the seriousness of that conduct, or in the circumstances surrounding it to found a satisfaction that it is in the national interest to cancel the visa of the person concerned’.”

42    The Minister acted consistently with this approach when reaching his decision in the present case.

43    The first ground has not been established.

PROPER, GENUINE AND REALISTIC CONSIDERATION

44    This second ground is closely related to the first. The applicant accepted that past criminal offending could be probative of a future risk of offending thereby giving rise to a risk of harm to the Australian community. More, however, was needed. The Minister was required to “deliberately and specifically engage with the merits of the case”. This required him to identify the kind of harm the visa holder may cause in the future, whether by committing a similar offence or otherwise, the “magnitude” of any such harm and the degree of risk of recidivism. Should the Minister not turn his attention to these matters, it was submitted, he would commit jurisdictional error by failing to give proper, genuine and realistic consideration to the risk of future harm to the community.

45    The applicant argued that, if the Minister could determine that there was a risk of future harm by reference only to the commission of the relevant offences, the distinction between the failure of the character test, the national interest and discretion would be blurred. Moreover, it might be expected that, in conferring a “veto” power on the Minister, the Parliament would reasonably expect him to closely examine the merits of any given case before determining to adopt a different view from the delegate or the Tribunal.

46    The applicant complained that the Minister had failed to give the necessary level of consideration to the merits of his case. He submitted that the Minister had only made bare conclusory statements about the existence of a risk of harm by reason only of the applicant’s past criminal offending. The Minister had done no more than make the assumption that the applicant’s previous offending was sufficient, of itself, for the Minister to be satisfied that the applicant presented a “risk of harm” to the community.

47    The applicant relied on what he said was the High Court’s endorsement, in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 174-5, of the dictum of Gummow J in Kahn v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292, that it was the duty of the Minister’s delegate to “give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy.”

48    It is important to bear in mind the context in which his Honour’s observation was made. In Kahn a decision, made under the Act, was challenged on the ground (among others) that the impugned discretionary power had been exercised in accordance with a rule of policy, without regard to the merits of the particular case. This challenge was brought under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Gummow J held that the delegate of the Minister and a review panel had both erred in the manner alleged because they had failed to give proper genuine and realistic consideration to the merits of the case advanced by the applicant when deciding to give effect to a policy relating to the treatment of non-citizens who had Australian born children and who sought permanent resident status.

49    In SZJSS, the High Court was dealing with an appeal from a single judge of this Court. His Honour had held that the Refugee Review Tribunal had failed to make a proper, genuine or realistic evaluation of what he regarded as being “highly supportive” material corroborating the factual basis of the fears claimed by the applicant. It had determined to give no weight to three letters which related to circumstances in the applicant’s home country. The Tribunal had given them no weight, largely because of social and political changes which had occurred since they were written. The High Court accepted a submission by the Minister that this Court had impermissibly employed the language of “proper, genuine and realistic consideration” to register the Court’s response to a weighing of the evidence by the decision-maker in a manner with which the Court disagreed: see at 176.

50    In Gbojueh v Minister for Immigration and Border Protection [2014] FCA 883 at [22] I rejected the proposition that there exists a generally available ground of jurisdictional error of failure “to give proper, genuine and realistic consideration” to the relevant material advanced by a party. That consideration may well be necessary where an applicant seeks to persuade a decision-maker that, for stipulated reasons, it is not appropriate to give effect to a policy which might otherwise be applied by the decision-maker. It does not follow that a decision-maker is bound to give careful and detailed attention to all material advanced by an applicant. Nor can it be said by a reviewing court that proper, genuine and realistic consideration has not been given to evidence and argument advanced by an applicant because it disagrees with the weight accorded to such material by the decision-maker: SZJSS at 176-7. Were it otherwise the reviewing court would engage in impermissible merits review: cf Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45]; SZJSS at 175-6.

51    In the present case it was not alleged that the Minister had erred by applying any rule or policy without first taking into account submissions about why it was not appropriate for him to give effect to the policy. For reasons already given, I do not consider that the Minister was bound to descend to the detailed consideration for which the applicant contended. In any event, his failure to do so cannot be equated with a failure to take into account material and arguments advanced by the applicant. The deficiency, if there be one, lies in the alleged failure of the Minister to characterise the degree of risk or harm associated with the applicant’s continued presence in Australia.

52    This ground must fail.

DISPOSITION

53    The application must be dismissed with costs.

Associate:

Dated:    7 November 2014