FEDERAL COURT OF AUSTRALIA

Fraser v Minister for Immigration and Border Protection [2014] FCA 1333

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1    Should the Minister for Immigration and Border Protection’s decision to cancel Mr Fraser’s visa be set aside and the decision remitted to him to make again? The answer, for the reasons which follow, is no.

2    Mr Fraser is a 22 year old New Zealand citizen who arrived in Australia in 1998, aged six, with his mother and sister. As is usual in such cases he was granted a particular kind of visa which is granted to New Zealand citizens and which permits them to stay indefinitely in Australia.

3    On 25 November 2011 Mr Fraser was involved in a disturbing road rage incident at Homebush in Sydney involving the driver of another car who had honked his horn at Mr Fraser after Mr Fraser had driven erratically in front of him. This elicited from Mr Fraser a display to the other driver of the middle finger of his right hand followed by his then hitting the side of his own car with the same hand. Mr Fraser then gestured for the other driver to go around him which he did. Mr Fraser followed behind until the other driver arrived at a private car park. The other driver got out of the car to go to the shops and left his wife and three children in the car. Mr Fraser then arrived in the car park and parked next to the other car with his boot open. Upon the return of the other driver to his car Mr Fraser said to him ‘Do you remember me brother’ to which the other driver said ‘Yes’. Mr Fraser then walked to the boot of his car. Fearful he was about to be assaulted in front of his own family the other driver looked around to find something he could protect himself with and found a wooden broom. Meanwhile Mr Fraser had produced a metal baseball bat with which he then proceeded savagely to assault the other driver, at first on the arm and shoulder and thereafter around the head and even when the man was down. The other driver became unconscious and Mr Fraser drove off. He was arrested later that day and did not obtain bail.

4    The other driver suffered very serious injuries which fortunately were not fatal, as they could easily have been. Mr Fraser was then charged on indictment with the offence that he had wounded the other driver with the intention of committing grievous bodily harm. On 9 August 2012 he pleaded guilty to the lesser charge of reckless wounding which was accepted by the Crown in full discharge of the indictment. The maximum penalty for this offence was 7 years with a standard non-parole period of 3 years. On 28 September 2012 the District Court sentenced Mr Fraser to 4 years imprisonment backdated to the time he was arrested with a non-parole period of 2 years. This meant that Mr Fraser would be eligible for parole on 24 November 2013. It appears he was released on parole at or around that time.

5    If he is satisfied that a non-citizen with a visa fails what is referred to as the character test, the Minister may cancel the non-citizen’s visa: Migration Act 1958 (Cth) (‘the Act’), s 501. Having been sentenced to more than one year’s imprisonment will suffice to fail the character test: ss 501(6)(a) and (7)(c). Thus, it was open to the Minister to reach the view that Mr Fraser failed the character test. On 12 September 2013 the Minister’s department notified Mr Fraser, who was at that time still incarcerated, that it was contemplating cancelling his visa under s 501. On 22 September 2013 Mr Fraser made written representations to the Department as to why this should not occur. There were some factors in Mr Fraser’s favour: most of his family was in Australia; he has a de facto partner with whom he has a child and another child from a previous relationship; at the time of the offence it was accepted by the District Court that he had certain mental health issues; he had a good relationship with his children and the cancellation of his visa would deprive them of a father. These submissions were also supported by extensive representations by Mr Fraser’s mother and others who explained the difficult circumstances of his upbringing.

6    Although this matter could have been decided by a delegate of the Minister, on this occasion, the Minister decided that he himself would make the decision in Mr Fraser’s case. This followed statements made by the Minister to the press that he would be personally deciding these kinds of cases in the future, that people who committed crimes whilst in the Commonwealth on a visa needed to understand that he had a very low tolerance for such behaviour and that they should not expect a response which was favourable. On 1 April 2014 the Minister cancelled Mr Fraser’s visa and he was taken into immigration detention where he remains.

7    Although there is an additional layer of merits review available where the decision maker is a delegate of the Minister this is not so where he makes the decision himself: s 500(1). Hence, Mr Fraser’s only available rights of review lie in this Court and in this Court only on grounds of jurisdictional error.

8    When the matter was first before the Court Mr Fraser represented himself with, I think it may be justly said, some assistance from his mother. He raised with me the fact of the Minister’s statements and submitted that he did not think he received a fair hearing from the Minister when he was publicly on record as saying that he was going to act harshly to people in Mr Fraser’s position. I adjourned the proceedings to allow Mr Fraser to identify the material which he said would justify the conclusion that the Minister was disqualified by reason of apprehended bias. At the same time, I made an order for referral for legal assistance under Division 4.2 of the Federal Court Rules 2011 (Cth). As a result of these actions, Mr Greg Johnson of counsel then appeared for Mr Fraser pro bono publico. A further amended application was prepared and written submissions submitted. The Minister was represented by Ms Francois of counsel who appeared with Mr Mack.

9    I record at the outset the very high standard at which the matter was argued on both sides and my appreciation of Mr Johnson’s very useful and clear submissions appearing, as he did, without fee. The Court derives considerable support from those who answer the calls made by it under Division 4.2 and it is important that their role be properly recognised. I might say for Mr Fraser’s and his family’s benefit that, whilst I am going to dismiss his proceeding, Mr Fraser has been represented as well as he could have been.

10    In this Court the case was distilled by Mr Johnson down to two significant points. These were, putting it broadly: first, that the Minister had failed adequately to assess the risk that Mr Fraser presented to the community; and, secondly, that the Minister’s public comments about the way in which he was going to deal with the position of visa holders who had committed serious offences had given rise to a reasonable apprehension of bias such that the decision should be set aside.

11    It is useful to consider these matters in that order.

Adequacy of consideration of issue of risk to the community

12    Mr Johnson submitted that the Minister was bound to take into account the risk to the community which Mr Fraser presented and that he was bound to assess this matter properly which he had not done. Instead, he had made conclusory remarks about the risk of harm and had given insufficient attention to the actual risk posed by Mr Fraser. There was material which suggested that Mr Fraser had expressed genuine remorse (this was in fact accepted by the District Court); he had participated in therapy and counselling programs in prison; he had family support; he had been an exemplary prisoner and had favourable prospects of rehabilitation. There was also the issue of what was in the best interests of his children. The availability of these grounds of review was said to spring from the recent decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673.

13    For the Minister, Ms Francois submitted that there was binding authority to the effect that the Minister did not have to examine the individual circumstances of a person in Mr Fraser’s position. This was the Full Court’s decision in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at 523-525 [74]-[80]. Further, the High Court had approved those very statements in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 556 at 571 [1], 606 [127]. The correct approach was illustrated by the decision of Tracey J in MZAGK v Minister for Immigration and Border Protection [2014] FCA 1190 at [34]-[35] where, albeit in a slightly different context, his Honour had observed that it was difficult to identify a basis on which it could be said that additional personal matters were required to be taken into account.

14    In reply Mr Johnson submitted that the statements in Huynh had been undermined by the recent Full Court decision in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at 7-8 [25]-[27].

15    The Minister provided reasons for his decision. Paragraphs [15]-[19] and [38] are the relevant paragraphs:

‘15.    Mr FRASER has completed a number of courses in prison. On 22 September 2013 he provided a supporting statement in which he stated that he has been diagnosed with attention deficit disorder, attention deficit hyperactivity disorder, oppositional defiance disorder, major depression, chronic depression and borderline personality disorder. He advised that he was taking Prozac for borderline personality disorder. Mr FRASER added that while [sic] was not receiving treatment at that time, he intended seeking assistance and continuing regular appointments following his release from prison on 24 November 2013.

16.    Mr FRASER had no incidents recorded in prison and had no positive urine test.

17.     Mr FRASER has a serious criminal history as a juvenile offender. As a juvenile he had two convictions for violent offences and he was convicted of Robbery Armed with an Offensive weapon, a serious violent crime, on 12 July 2010. Although he was by this time an adult, he was sentenced in the Youth Drug Court, indicating that he was still a minor when he committed this offence.

18.    Mr FRASER also has a history of breach of judicial orders.

19.     In view of Mr FRASER’s criminal history, particularly his violent offending, his disregard for judicial orders and the limited action to address his anger and mental health issues, I find that there remains a risk that Mr FRASER will re-offend. I find that if the conduct was to be repeated, serious harm could result.

…

38.    In reaching my decision, I gave considerable weight to the violent offending by Mr FRASER and the pattern of his repeat offending. The sentences Mr FRASER has received reflect the seriousness of his offending conduct against the community. If Mr FRASER were to engage in similar offending the harm would be very serious. I consider that any risk of the conduct and the harm being repeated is unacceptable. ’

16    I accept Mr Johnson’s submission that the Minister’s statement of reasons does not refer to:

    the decision by the Parole Board to release Mr Fraser on parole; or

    his exemplary behaviour in prison.

17    I reject the submission that the Minister’s reasons did not deal with:

    his sincerely expressed remorse. The Minister referred to the sentencing judge’s comments to this effect at [14];

    his favourable prospects of rehabilitation. The Minister also referred to the sentencing judge’s comments to this effect at [14];

    participation in therapy and counselling programs in prison. The statement in [15] that Mr Fraser had taken part in courses whilst in prison reflected a statement at [47] of the briefing note which was placed before the Minister that he had taken part in these courses;

    the position of his children. This was dealt with at [25]ff; or

    the fact that he had family ties to Australia. This was dealt with by the Minister at [24].

18    As Ms Francois correctly pointed out, the fact that a matter was not referred to in the reasons does not mean inevitably that it was not considered. There was an extensive briefing note before the Minister. Each of the two matters referred to above (which I am satisfied were not expressly referred to in the actual decision) were touched upon in the briefing note. The Minister was bound to produce a statement of his reasons: s 501G(1)(e). Further, in those reasons he was required to ‘set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based’: Acts Interpretation Act 1901 (Cth), s 25D. Since the two matters do not appear in the reasons there are two inferences which may be open:

(a)    the Minister did not consider these matters at all; or

(b)    the Minister did consider them but did not regard them as material within the meaning of s 25D and omitted them from the statement of reasons.

19    Either of these conclusions is, I think, sufficient for the purposes of Mr Johnson’s argument. On that view of affairs, the matters were material in the sense that the Minister, as I apprehended the argument, could not proceed to make a decision without dealing with them. Whether the Minister did not refer to them because he did not consider them at all (i.e. (a)) or because, whilst taking them into account he did not think they were material (i.e. (b)), there would have been a failure to give proper consideration.

20    The question then arises as to whether the Minister was bound to consider these matters as material. There were four steps to the argument. First, the protection of the Australian community was a mandatory consideration for the Minister in exercising his power having regard to the scope, subject matter and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J. Secondly, he was bound in considering this mandatory matter to give it proper, genuine and realistic consideration. Thirdly, in doing so he was therefore bound to take into account the two matters set out above. Fourthly, he had not done so.

21    I accept the first step. The subject matter of s 501 is those non-citizens who have failed the character test. The various ways in which this may occur are set out in s 501(6). One way by which a person does not pass the character test is if they have a ‘substantial criminal record’. This is defined by s 501(7) and includes being sentenced to a term of imprisonment for more than 12 months. More complex, but not presently relevant, provision is made for persons who are sentenced on more than one occasion. It is beyond constitutional power for s 501 to operate to authorise the Minister to punish non-citizens for their past misdeeds, for punishment for criminal guilt is the exclusive domain of the judicial department as a result of Chapter III of the Constitution. The only relevance a non-citizen’s criminal record can therefore have is the exercise by the Minister of a power to protect the community from persons who pose a threat to it. The exercise of such a power does not involve the exercise of judicial power. I note a similar conclusion was reached by Mortimer J in Tanielu at [88].

22    As to the second step I would accept that it is not sufficient simply to advert to the issue of the protection of the community without any analysis: Elias v Commissioner of Taxation (2002) 123 FCR 499 at 512 [62]. What is required when a mandatory consideration is taken into account is more than mere lip-service: Anderson v Director-General of the Department of Environment and Climate Change (2008) 251 ALR 633 at 651 [58] per Tobias JA. For myself, I doubt whether the formulations of what this requires such as ‘proper, genuine and realistic consideration’ or consideration ‘in a real or conscientious way’ add to this concept and I respectfully agree with the observations of Basten JA in Belmorgan Property Development Pty Ltd v GPT RE Ltd (2007) 153 LGERA 450 that their use may be apt to cause a slide into impermissible merits review. Nevertheless, I do accept that the Minister was bound to take into account the protection of the community and that his consideration of the matter had to be more than merely formulaic. As Allsop CJ and Katzmann J recently observed, if the consideration was mandatory then he was required to give it proper or genuine consideration: NBMZ at 7-8 [26].

23    I part company from Mr Johnson’s submissions on his fourth point, however. The fact is that the Minister did take into account the risk to the community presented by Mr Fraser in a reasonably detailed way in the paragraphs set out above. I cannot say that he has merely adverted to the matter or that his consideration of it was entirely formal. Mr Johnson submitted that the words in [19] of the decision ‘I find that there remains a risk that Mr FRASER will re-offend’ was a mere conclusory statement disconnected from analysis. No doubt that would be true if it occurred in isolation but it is evident that the conclusion is drawn from the preceding four paragraphs.

24    It seems to me that the consideration of the risk to the community given by the Minister was genuine and proper. Against this conclusion Mr Johnson submitted that the Minister was bound to undertake an assessment of the risk of harm and referred to Mortimer J’s decision in Tanielu. In that case the Minister made these statements in his reasons:

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

….

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

….

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

25    Mortimer J concluded that the Minister had not given genuine consideration to the risk of Mr Tanielu re-offending: see [109]-[112]:

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

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

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

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

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

26    In essence, her Honour concluded that whilst the Minister had recited the facts which brought Mr Tanielu within the purview of the character test he had not undertaken an actual assessment of the risk posed to the community by reason of re-offending.

27    I do not think that can be said in the present case. A number of matters indicate that the Minister was focussed on what might happen in the future. These were Mr Fraser’s breach of judicial orders and the limited action the Minister thought he had taken to address his anger and mental health issues. Both of these were rational reasons to think, as the Minister concluded, that he might re-offend. In Tanielu, by contrast, the Minister reasoned to his conclusion that there was a risk of re-offending more or less solely by reason of the fact that Mr Tanielu had a criminal record.

28    I do not think, therefore, that Tanielu assists Mr Fraser. Both Mortimer J and I accept the need for the risk to the community to be addressed. The difference between the two cases is that the Minister appears to have done so in the case before me. I would accept that the Minister’s statement that Mr Fraser’s efforts to address his anger management issues have been limited is problematic in that the Minister also accepted that Mr Fraser had proposed on his release to continue treatment but I do not see that it gives rise to a ground of review in itself.

29    In those circumstances I do not need to deal with Ms Francois’ submission that Tanielu was incorrectly decided in light of the Full Court’s judgment in Huynh at [74] and that the personal circumstances of Mr Fraser were not a mandatory consideration. I doubt that that submission is really an answer to the reasoning of Mortimer J which does not hold that personal circumstances are a mandatory consideration but instead only that the risk to the community is. For myself, I struggle to understand how one could address the risk to the community without examining the likelihood of an offender re-offending.

30    This ground fails.

Apprehended Bias

31    I turn then to the second argument. Mr Johnson submitted that three utterances by the Minister gave rise to a reasonable apprehension of bias. These were comments reported on 13 January 2014 to have been made by the Minister, a press conference given by the Minister on 11 October 2013 and an interview between Mr Andrew Bolt and the Minister given on 22 June 2014. The last of these occurred after the Minister’s decision in this case was made and I do not see that it can assist.

32    In a Herald Sun article of 13 January 2014 it was reported that the Administrative Appeals Tribunal had stopped the cancellation of the visas of two violent offenders. The implication was that the Tribunal was excessively lenient. The Minister’s office was contacted for comment. The article then quoted the Minister’s spokeswoman as follows:

‘A spokeswoman for Mr Morrison said he was considering advice on both cases.

She said the previous government had delegated visa cancellations on character grounds to a departmental official.

“Had the decision to cancel Mr Gabriel’s visa been made by the minister, it would not have been subject to review by the AAT,” she said.

“Mr Morrison has asked the department to ensure that consideration of all visa cancellations and refusals based on character grounds are referred to him.” ’

33    Next, at the press conference held on 11 October 2013, during which the Minister announced the commencement of Operation Sovereign Borders in the presence no less of an Air Marshal and a Commissioner of the Federal Police, the following exchange took place between a journalist and the Minister following a previous question relating to detainees having visas cancelled or refused following offences committed while in immigration detention:

‘Journalist:    – So you wouldn’t accept that for someone who is on a good behaviour bond? You wouldn’t [indistinct] that?

Scott Morrison:    If people commit crimes who are on visas, they should expect a very strong message from me as minister and from this government in terms of how we look at their continued presence in Australia. I have a very low tolerance for those who commit crimes who are on visas. If people are on a visa, they are here at the courtesy of the Australian Government and the Australian people. If they want to breach that courtesy, then they shouldn’t expect a response which is favourable.

Journalist:     Sorry, Minister, people who are – have committed, not people who are alleged to have committed –

Scott Morrison:     –Well, there is also a general character test under the act and there are a range of other provisions that go to the character test and each case is assessed on its merits and that’s the duty I have as a minister, but I think the general principle should be well understood. But if we could take it back to OSB matters because that relates to people already here, on any form of visa for that matter.’

34    The reasonable apprehension of bias was said to arise because a reasonable person would think that the Minister was indicating that he would take a tough stance on visa cancellations in respect of those who have committed a crime and that they should not expect to stay in Australia; further, that he was concerned about the leniency of the Tribunal and would be deciding all cases himself so as to ensure that persons in the position of Mr Fraser would have their visa’s cancelled. Perhaps a compendious way of putting these points is that the Minister proposed to make sure that people such as Mr Fraser did not get to remain in Australia on his watch.

35    In my opinion, the comments of the Minister taken together with his decision to decide all such applications himself do generate an apprehension that he is unlikely to bring a fair or balanced mind to the performance of his statutory functions. However, I am bound by the High Court’s decision in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 to reject Mr Fraser’s argument. At 566 [190]-[192] Hayne J accepted that in that case the Minister was legitimately able to form views about how he would exercise his discretion under s 501 and this therefore limited the scope for any argument premised upon apprehended bias. Gleeson CJ and Gummow J relevantly agreed at 538 [100]. They added (at 539 [102]-[103]) that the decision by Parliament to repose this kind of decision in a political office meant that ‘[t]here is no reason to conclude that the legislature intended to impose such [judicial] standards upon the Minister, and every reason to conclude otherwise’. Put another way, when a politician is given an administrative function it is to be expected that it may well be exercised for political reasons. For myself, I had understood the bias rule to be part of the rules of procedural fairness and that those rules could not, in accordance with the principle of legality, be ousted other than by words of unmistakeable clarity which I would not necessarily read s 501 as evincing. However, Jia Legeng requires the opposite conclusion and it binds me. Although Kirby J expressed the contrary view, his Honour’s was a dissenting judgment.

36    The application will be dismissed with costs.

Associate:

Dated:    9 December 2014