FEDERAL COURT OF AUSTRALIA

Jione v Minister for Immigration and Border Protection [2015] FCA 144

THE COURT ORDERS THAT:

1.    Writs of certiorari and prohibition issue quashing the decision of the respondent made on 23 October 2014 to cancel the applicant’s visa under s 501A(2) of the Migration Act 1958 (Cth) and prohibiting the respondent from acting further upon that decision.

2.    The respondent pay the applicant’s costs.

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

REASONS FOR JUDGMENT

Nature of the case

1    The applicant was born in Fiji and is in his early thirties. He is not a citizen of Australia and therefore requires a visa to live here. The conditions under which he holds a visa are determined in accordance with the Migration Act 1958 (Cth) (“Migration Act”).

2    For reasons I shall describe, the applicant’s visa was cancelled by a delegate of the Minister on 4 April 2013 under s 501(2) of the Migration Act. The applicant applied to the Administrative Appeals Tribunal (“the AAT”) for review of the delegate’s decision. That application was successful. The AAT set aside the decision of the delegate and substituted a decision that the visa was not cancelled. Then the Minister, acting personally under s 501A(2) of the Migration Act, decided that despite the decision of the AAT, he (the Minister) would nevertheless cancel the applicant’s visa “in the national interest” (s 501A(2)(e)).

3    The Minister’s decision has now been challenged in this Court for jurisdictional error.

The statutory scheme

4    Section 501A provides (relevantly here):

501A    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.

…

Minister’s exercise of power

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

(Emphasis in original.)

5    There is another provision (s 501A(3)) which permits the Minister to act without coming under a duty to afford natural justice, but it was not used in the present case. The applicant was notified on 28 October 2013 that the Minister intended to consider personally whether to cancel his visa. He was given an opportunity to respond and, with the assistance of a solicitor from the Legal Aid Commission of New South Wales, he did so.

6    There is no issue that the applicant does not pass the character test. He has been sentenced to prison for a period of 12 months or more. In fact, he was sentenced to prison in 2007 for a period of 12 years for maliciously inflicting grievous bodily harm.

7    The question for the Minister, therefore, was whether it was in the national interest that the applicant’s visa be cancelled in the exercise of his personal discretion.

The applicant’s legal representation

8    Pursuant to arrangements made after the proceedings were commenced, legal representation was obtained for the applicant who, at the time he commenced the present proceedings was unrepresented. The Court is always grateful that members of the legal profession are prepared to respond to a Court referral and assist in the administration of justice by providing their services.

Background circumstances

9    The applicant came to Australia to live at the age of about 16. When he was about 23 (between December 2004 and July 2005) he was involved in two violent incidents (one of which was particularly serious in its consequences) which led to him being charged and convicted. The second incident has subsequently led to the cancellation of his visa.

10    The first incident involved domestic violence. He assaulted his partner. His young son (about one month old at the time) was present and Mr Jione held him during part of the encounter. There is no suggestion that the child was hurt.

11    The second incident was much more violent. It involved a systematic, brutal and repeated assault upon a person who was left in a vegetative state and who is not expected to ever recover.

12    Alcohol played a large part in each of these incidents as did underlying repressed anger, possibly arising (in part at least) from sexual abuse of Mr Jione for about one year when he was nine years old.

13    When he was sent to prison Mr Jione worked his way successfully through a series of rehabilitation programs. It took him some little time initially to be accepted into the programs but he completed them in a way which has earned him substantial recognition. On all the evidence which was before the AAT on its review of the delegate’s decision, he has successfully put aside his prior alcohol and drug abuse. He has come to terms with his history of sexual abuse. He has successfully managed his anger and has achieved considerable insight into his own circumstances.

14    In its very thorough decision the AAT weighed all these factors against the requirements of a general direction issued by the Minister for Immigration (Ministerial Direction No. 55) which sets out a number of instructions to be followed by decision-makers considering whether to cancel a visa under s 501 of the Migration Act. One primary consideration is whether a visa holder represents an unacceptable risk to the Australian community. The AAT found that Mr Jione did not represent an unacceptable risk to the Australian community. It found that such risk as he did represent was overborne by the various other factors which favoured him retaining his visa. Consequently, the final conclusion of the AAT was that Mr Jione’s visa should not be cancelled.

15    The Minister has now exercised his personal discretion under s 501A of the Migration Act in the national interest. The Minister’s Statement of Reasons places greater weight than did the AAT upon the circumstances and consequences of the second, very violent, assault. Nevertheless, the Minister’s Statement of Reasons refers to all of the other matters which were referred to by the AAT and accepts that they favour Mr Jione retaining his visa. Those other circumstances include the best interests of his children, the consequences for his family and his efforts to rehabilitate himself.

16    The Minister’s reasons, indeed, take into account more recent events in Mr Jione’s favour such as the fact that his partner was pregnant and due to give birth when the visa was cancelled. In fact, Mr Jione’s baby daughter was born very shortly after the decision to cancel his visa was made and is another child who will be deprived of his presence and support if he leaves the country.

The national interest

17    Like the concept of the “public interest”, the national interest is a broad and often indeterminate test, until the circumstances of a particular case come into focus. Even then, a large discretion is usually given to those charged with the assessment of matters in the public or national interest. For example, it has been held that the phrase “the public interest” has no fixed and precise content: see Osland v Secretary, Department of Justice (2008) 234 CLR 275 at [57]. In O’Sullivan v Farrer (1989) 168 CLR 210, the High Court said (at 216):

… the expression “in the public interest”, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view”: Water Conservation and Irrigation Commission (NSW) v Browning, per Dixon J.

(Editing in original.) (Citation omitted.)

18    This statement has recently, and repeatedly, been affirmed by the High Court: Osland v Secretary, Department of Justice (No 2) (2010) 241 CLR 320 at [13]; Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at [30]; Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 87 ALJR 682 at [39] and [127].

19    In Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 (“Madafferi”) a Full Court of this Court (referring directly to the test in s 501A(2) of the Migration Act) said:

86    The Minister in considering the national interest under s 501A(2) may properly have regard to the circumstances which underpin the failure to satisfy him that an applicant for a visa passes the character test. 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. …

…

89    … The question of what is or is not in the national interest is an evaluative one and is entrusted by the legislature to the Minister to determine according to his satisfaction which must nevertheless be obtained “reasonably” – Re Patterson; Ex parte Taylor at 447; 698 (Gummow and Hayne JJ, Gleeson CJ agreeing). Callinan J agreed with Kirby J that the constitutional writs do not entitle the judges to substitute for the satisfaction of the Minister the satisfaction of the judges (at 519; 755).

20    More generally, in Plaintiff S297/2013 v Minister for Immigration and Border Protection [2015] HCA 3, the High Court (at [18]) emphasised the width of the matters which a Minister may normally take into account as a decision-maker, referring to Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 (per Gaudron, Gummow and Hayne JJ at [50]).

21    In my respectful view, although there may perhaps be occasions where it would be appropriate to make some distinction between the concepts of the public interest and the national interest, in general no distinction could be made concerning the width of each expression, or the recognition that assessment of whether the public interest or the national interest is engaged will generally be left in the hands of the repository of the statutory power in question.

Grounds of the application in this Court

22    It must be remembered in the discussion which follows that the Minister’s personal decision is only reviewable in this Court for jurisdictional error. No review of the merits, such as earlier occurred in the AAT, is available.

23    For the reasons I gave in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 (“NBMZ”) at [141]-[152], the jurisdictional limits within which an administrative decision-maker (such as the Minister in the present case) must generally operate (leaving aside questions of natural justice or procedural fairness) may, in my respectful view, be summarised as follows:

142    A decision-maker must: correctly appreciate the statutory context in which the decision is to be made; apply the correct test in the exercise of the discretion; pay regard to all necessary considerations for the exercise of the discretion; and, not be influenced by matters extraneous, foreign or irrelevant to the exercise of the discretion.

24    Pursuant to leave granted to amend the originating application, the applicant advanced the following grounds, supported in each case by particulars and developed by written and oral submissions:

1.    Ground 1: In making the decision, the respondent denied the applicant procedural fairness.

2.    Ground 2: In making the decision, the respondent failed to take into account a mandatory relevant consideration: viz, the best interests of minor children.

3.    Ground 3: The respondent’s decision was vitiated by jurisdictional error on the basis of unreasonableness.

4.    Ground 4: The respondent committed jurisdictional error by misconstruing s 501A(2) of the Migration Act 1958 (Cth).

25    Grounds 1 and 4 were supported by particulars which criticised reference by the Minister to the cost and potential cost to the community of medical costs arising from the applicant’s past and potential future conduct. It was contended that the applicant was on no notice such factors might be regarded as relevant and that it was not, in any event, a matter properly relevant to the assessment of the national interest.

26    Particulars of Ground 2 contended that the Minister failed to take into account the interests of two children of the applicant’s partner who, at the time of the Minister’s decision, was awaiting the birth of their child.

27    Particulars of Ground 3 contended that the Minister acted “unreasonably” (in the legal sense) in not delaying a decision until after the birth of that child in October 2014, rather than signing a decision on the day the baby was due to be born.

The structure of the Minister’s reasons

28    In the Statement of Reasons provided by the Minister with his decision to cancel the applicant’s visa, the Minister expressly referred to the national interest before he turned to address, as discretionary considerations, why the Minister might exercise a discretion not to cancel the visa even though it was in the national interest to do so. No complaint has been made in the present case about that structured approach to the decision-making task.

29    An approach of that kind was expressly approved by Bromberg J in Gbojueh v Minister for Immigration and Citizenship (2012) 202 FCR 417 (“Gbojueh”), who said:

14    The drafting of s 501A(2) utilises a well recognised format, requiring the satisfaction of prerequisite conditions (set out in s 501A(2)(c), (d) and (e)) before the residual discretion is enlivened. One of the preconditions to the exercise of the discretion is the Minister’s satisfaction that the cancellation of a visa is in the national interest. The availability of the Minister’s discretionary power to set aside the original decision and to refuse to grant a visa or cancel a visa that has already been granted, is only enlivened when the Minister is satisfied of each of the preconditions to the exercise of the power. The question whether the discretion should be exercised does not arise until the Minister is satisfied that each of the preconditions are met, including that cancellation would be in the national interest. Decision-making in accordance with the structure of the section requires the Minister to consider the national interest precondition before considering the exercise of the residual discretion. A two step process is necessarily required of the Minister.

30    For my own part, and with all respect to the contrary view, I do not see why it is thought necessary to divide the Minister’s task in quite this way, and why all the so-called discretionary factors would not be relevant to a decision about whether cancellation of the visa was found to be ultimately appropriate in the national interest, having regard to all the circumstances of the particular case. Indeed, it seems to me that there may be some dangers in any suggestion that an assessment of the national interest should be attempted in advance of, and separately from, consideration of other matters bearing upon an exercise of the discretion. There are some matters (e.g. the seriousness of criminal conduct and the risks of re-offending) which are plainly relevant to both an assessment of the national interest and any consideration of discretionary factors in a particular case.

31    It is quite apparent, in the present case, that although the Minister’s decision was formally divided into different sections along the lines indicated in Gbojueh there was a considerable cross-over between the two stages.

32    However, no complaint was made by either party. The procedure followed does not affect the matters for consideration. I would certainly not conclude that the construction offered in Gbojueh was “plainly wrong” even though I have reservations about it.

Ground 1

33    When he specifically dealt with the national interest, the Minister first referred to the nature and seriousness of the applicant’s last conviction. That was obviously relevant (see Madafferi). Consideration of that issue included reference to the impact on the victim’s family.

34    Then the Minister referred to the following matters, clearly on the basis that they supported a view that the national interest favoured visa cancellation as a result:

22.    I also find that Mr JIONE’s offending has adversely affected the community. The injuries sustained by the victim constitute an ongoing cost to the Australian community in terms of medical resources.

…

24.    Crimes of violence have a significant impact on individuals and the community. Should Mr JIONE re-offend by engaging in violent behaviour, individuals and the community would be subjected to additional significant harm and the community would be required to bear any related law enforcement and medical costs.

35    The first of such matters was not a matter capable of being directly affected by whether the applicant’s visa was cancelled or not. Neither the first nor the second factors were ones which the applicant was expressly told might be taken into account. Although the Minister was obliged, under s 501A(2), to afford the applicant procedural fairness, he was not obliged to indicate all the matters he might take into account, or how they might be weighed, provided, first, that such matters were relevant and, secondly, that it was sufficiently apparent from the nature of the decision to be made that the matter referred to might be regarded as relevant. The question of apparent relevance in the first instance requires some examination.

36    For the purpose of assessing relevance a distinction must be made, I think, between the reference to costs to the community arising from the applicant’s conduct, and the possibility of future costs (i.e. between paragraph 22 and paragraph 24 of the Statement of Reasons).

37    I have been persuaded, as counsel for the Minister argued, that paragraph 22 should be read as an extension of the description of the character and consequences of the applicant’s conduct. The statements in paragraph 22 appear to be based on statements made in the judgment of the NSW Court of Criminal Appeal when the applicant’s sentence was increased, having regard to the seriousness of the assault he carried out. Those statements included the following:

“… In summary the victim, a father of three, has been diagnosed as suffering comprehensive brain damage. He is able to breathe unassisted but remains attached to a feeding tube. He is expected to remain in a vegetative state indefinitely. His prognosis is poor and he is likely to be totally reliant on nursing home care for the remainder of his life. He has a significantly reduced life expectancy.”

38    Seen as a continuation of the description of the consequences of the applicant’s conduct (which causes him not to pass the character test) there is no conclusion available that the matters referred to in paragraph 22 were irrelevant. Whether the applicant was denied natural justice in relation to them is a different question to which I will return shortly.

39    Paragraph 24 deals with a different issue. It states a speculative conclusion which depends upon the occurrence of events contrary to the probable future course of events accepted by the Minister. The AAT found that the risk that the applicant would re-offend was low. So did the Minister.

40    Nevertheless, I accept that it was open to the Minister, in his assessment of the national interest, to have regard to the possible future burden on the community if another offence of the same type and the same consequences was committed by the applicant.

41    Again, however, that is not the same question as whether the applicant was denied procedural fairness.

42    When the Minister stated further conclusions later in the Statement of Reasons about any risk of re-offending, he said the following:

33.    If Mr JIONE were to re-offend, immediate victims and other members of the community would be subjected to additional significant harm and the community would be required to bear any related costs, including policing, court and prison resources and costs associated with medical treatment and care.

34.    The Tribunal accepted that Mr JIONE has a supportive family and that the therapeutic interventions available to him have supported him and would continue to assist his rehabilitation.

35.    Mr JIONE has participated in a number of rehabilitative and vocational courses while in custody from at least 2006 and he has continued with rehabilitative counselling in the community since 2013, he has complied with his parole conditions and he is working to support himself and his family. He has the support of family and friends in Australia.

36.    The Tribunal found that Mr JIONE’s risk of re-offending is low. His representative also states that Mr JIONE’s risk of recidivism as low. Mr JIONE was reported as compliant, constructively engaged in courses undertaken and consistently displayed positive behaviour whilst attending custodial based programmes. I also acknowledge that Mr JIONE has participated in work release programmes.

37.    Whilst in the community Mr JIONE has complied with parole conditions.

38.    I have noted the numerous letters of support provided by Mr JIONE’s family and friends and the support they pledge to provide him in his continued rehabilitation. I am mindful of Mr JIONE’s display of remorse and his insight into the consequences his actions have inflicted on the victim and the victim’s family and his commitment to self improvement.

39.    Notwithstanding Mr JIONE’s recent good conduct and the above independent material which places him at a low risk, in light of Mr JIONE’s criminal record I consider that there is a risk that Mr JIONE will reoffend.

40.    In concluding that Mr JIONE may reoffend, I am mindful of the fact that great harm could result to members of the Australian community if he were to do so.

…

61.    I formed the view that Mr JIONE poses an unacceptable risk of harm to the Australian community. While I am satisfied that Mr JIONE poses only a low risk of re-offending, the nature of his offending and the harm that could result if he were to repeat it means that any risk is unacceptable.

43    This reasoning is introduced with the same conclusion which appears in paragraph 24 (that re-offending would impose costs on the community) but proceeds to conclude that the risk of re-offending (and therefore, presumably, the imposition of the possible related costs) is low. The effect of the reasoning must be that any possibility of such related costs generates a national interest in avoiding the possibility, even though the risk might be low.

44    In my view, the applicant should not reasonably have anticipated such a line of reasoning and should have been given an opportunity to deal with it. I need not further consider here the implications, in terms of the doctrine of legal unreasonableness (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”)), of an approach which equated the national interest with avoidance of any risk at all, notwithstanding the ameliorating and mitigating factors which apply in the applicant’s case. It should be noted, however, that the Minister’s power to substitute a personal decision for that of the AAT is not enlivened merely by disagreement with the assessment made by the AAT about how the ultimate discretion whether to cancel a visa should be exercised. The national interest must be engaged. The concept of the national interest is broad, but it is not devoid of content.

45    In Durani v Minister for Immigration and Border Protection (2014) 314 ALR 130, a Full Court dealt with a case where the Minister cancelled the visa of a medical practitioner under s 501A, after referring to his conclusion that the practitioner’s offending (which included sexual offences against a patient) “undermined the integrity of the skilled migration program as well as reducing public confidence in the nation’s health care system”. The Full Court found that it was procedurally unfair not to give notice that this (admitted) aspect of the national interest might be taken into account. The Full Court said:

[68]    In the present case, characterising the appellant’s criminal convictions by reference to bringing the skilled migration program into disrepute and therefore undermining public confidence in the program and therefore its integrity was not apparent from the nature of the decision or the terms of the statutory power. We do not accept the submission on behalf of the minister that the circumstances raised a question about whether the nation is picking the right doctors to come here and that has “at least potentially, implications for the skilled migration program” such that bringing the skilled migration program into disrepute and therefore undermining public confidence in the program and therefore its integrity was “a natural and very unsurprising aspect of the decision that was to be made”.

[69]    In our opinion it is not sufficiently apparent from the facts and circumstances of the case and the statutory criterion that where criminal convictions stem from the skill or qualification by reference to which a visa was granted, those criminal convictions will bring the skilled migration program into disrepute or undermine public confidence in it or undermine its integrity or that cancellation of the visa would, or would tend to, restore that reputation or public confidence in the migration program or its integrity. Further, the appellant had not made submissions on that topic.

46    The Full Court also referred to NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44 at [145] and NBMZ at [210], saying:

[71]    … the significance of NBNB at [145] and NBMZ at [210], referred to by the appellant, is in the principles to be derived from them. Those decisions lend some support to the appellant’s submissions but, in our opinion, only to the extent that the breadth of the criterion “national interest” may require, depending on the circumstances of the particular case, that the minister give the visa holder an opportunity to make a submission on an aspect of the “national interest” which was not apparent or where an adverse conclusion would not obviously be open on the known material.

47    In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, a Full Court stated the requirements of procedural fairness as follows (at 591-2):

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. …

48    The Minister has issued instructions to decision-makers about matters to take into account when making decisions about whether to cancel a visa on character grounds (Ministerial Direction No. 55). Those instructions do not bind the Minister, who may assess the national interest, and make a decision, without legal restriction arising from them. However, the existence and content of Ministerial Direction No. 55 and the course of decision-making at the levels below the Minister’s final decision are relevant to understand the matters which have so far been taken into account in deciding whether to cancel the applicant’s visa and, hence, matters about which he was clearly on notice (c.f. SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35]).

49    In particular, it is instructive to examine whether any economic consequence for the Australian community had earlier been taken into account as a relevant factor.

50    Counsel for the Minister referred to paragraphs 7 and 13 of the delegate’s decision to cancel the visa:

7.    The offence listed above under Character Test involved several attacks on the victim, which left him in a vegetative state, with permanent and comprehensive brain damage, and requiring constant medical attention. The court noted that the offending also had a catastrophic effect on the victim’s wife and three young children.

…

13.    While accepting that Mr JIONE has made progress in his efforts towards rehabilitation, I consider that some risk of reoffending remains. In view of the extremely serious consequences of his offending in the past, any risk of further similar offending is unacceptable.

51    However, those conclusions and remarks were not concerned with taking economic consequences for the community (past or future) into account. That was not a matter to which the delegate was directed to give attention by Ministerial Direction No. 55. Similarly, the AAT made no adverse finding about such an issue.

52    The Minister’s consideration of whether to cancel the applicant’s visa was assisted by a briefing paper, prepared by officers of his Department. The only mention of economic consequences appears to be:

33.    It is also open for you to take into account that Mr JIONE’s offending has adversely affected the community, in other ways. These injuries constitute an ongoing cost to the Australian community in terms of medical resources and the victim’s family have suffered the permanent loss of their husband and father.

…

41.    In light of the above information, particularly the seriousness of Mr JIONE’s most recent conviction and the effect on the community of this offending, including the financial burden on the community and the emotional toll on the victim’s family, it is open to you to find that cancellation of his visa is in the national interest.

53    Consideration of possible future economic consequences, therefore, appears to be a later development, or at least not one specifically suggested to the Minister at that time. However that may be, nothing said to the Minister can suggest what may have been apparent to the applicant.

54    I do not think it would have been obvious to the applicant (or should have been apparent to him) that the past economic consequences of his conduct (i.e. on the community as a whole), or the possible future economic cost to the community of some further offence, would be taken into account, whether as relevant to the national interest or otherwise.

55    Two further reasons may be advanced why it may not have occurred to the applicant to treat either aspect as relevant or one about which he need be concerned. First, the decision whether to cancel his visa could have no effect on any past or continuing economic consequence arising from his past offending and he was entitled to expect that the Minister would not use the occasion of the exercise of his discretion simply to mete out a further punishment for his past crime.

56    Secondly, it should not be accepted that it would have been apparent to the applicant that the possibility of the unknown economic consequences of unknown future conduct arising from a low risk of re-offending would engage some concept of Australia’s national interest leading to the Minister substituting a different decision to the AAT.

57    It must be assumed that the Minister felt the matters referred to in paragraph 24 (and 33 and 40) of his Statement of Reasons were relevant to the national interest, but they are not matters peculiar to the applicant, or to his offences. The analysis extends presumably to any crime of violence. A single offence does not evoke a pattern of conduct in this or any other case. If the Minister was to approach the matter on the footing that, the applicant’s particular circumstances and history aside, the possibility of any crime of violence (with its attendant law enforcement and medical costs to the community) favoured cancellation of any visa, that should have been clearly indicated. There is no basis for an assumption, that I can detect, that Australia will expel any person convicted of a violent crime as a matter in the national interest. If that was to be the approach applied, the Minister should have said so.

58    Ground 1 is therefore established.

Ground 2

59    The Minister accepted that it was in the best interests of the applicant’s biological son, and the two children (at that time) of his fiancée, that the applicant’s visa not be cancelled. The Minister also accepted that it was in the interests of the (then) unborn child which the applicant and his fiancée were expecting if the visa was not cancelled.

60    Nevertheless, the applicant’s written submissions argue:

45.    In this case, the applicant submits that the Minister was required to consider the extensive evidence of the deleterious effect on each of the three children that was in the material before him, and on the basis of that evidence, decide what would be the effect of cancellation of the applicant’s visa and then weigh that against countervailing considerations. The minimal findings that cancellation would not be in the respective children’s best interests do not, in the applicant’s submission, amount to “proper, genuine and realistic consideration” of their best interests.

46.    A further factor that ought to have been, but was not, considered in taking into account the best interests of the children A and B (the applicant’s step children) as a primary consideration was the impact on their future care of their mother being rendered a sole parent, with the additional responsibility of a new born baby.

47.    While the impending birth of the child was acknowledged, no reference was made to the impact that the birth would have on the mother’s ability to care for the children and thus the direct impact the birth of the baby would have on those children, via the constraint it would impose on their mother’s ability to care for them while also caring for a newborn as a single parent deprived of the support, including financial support, she had previously received from the applicant. In the applicant’s submission, this amounts to a failure to take into account the mandatory consideration of the best interests of the infant children A and B as a primary consideration and thus constitutes jurisdictional error.

61    The notion of “proper, genuine and realistic” consideration is derived from observations made by Gummow J (when a judge of this Court) in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291. Khan was referred to in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 (at [26]) as follows:

26    In Khan v Minister for Immigration and Ethnic Affairs, Gummow J considered a migration appeal brought in 1987, when such appeals were decided under the AD(JR) Act. His Honour construed an improper exercise of power as including a reference to an exercise of a discretionary power in accordance with a rule or policy, without regard to the merits of a particular case. His Honour found that in considering all relevant material placed before him, the Minister’s delegate was required 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”.

(Footnotes omitted.)

62    It may be seen that the jurisdictional condition referred to involves consideration of whether the statutorily assigned task has in fact been carried out by reference to the circumstances of the case in question, rather than by the application of an inflexible policy or rule regardless of the circumstances of the particular case.

63    In my respectful view, the arguments in support of Ground 2 are really a submission about the weight to be attributed to the particular matters identified, and do not identify a jurisdictional error.

64    Ground 2 is not made out.

Ground 3

65    This ground focusses upon the timing of the decision. It is captured in essence in the following paragraph of the applicant’s written submissions:

49.    The Respondent acknowledged in the reasons for decision that it was in the unborn child’s best interests that the applicant’s visa not be cancelled (CB 38; [53]). In these circumstances, the applicant submits that it was unreasonable for the decision not to be delayed sufficiently to discover whether and when the child was born, knowing she was due to be born on 23 October 2014. Had the decision been made a matter of days later, the Minister would have been required to consider her best interests as a primary consideration, rather than merely, as he did, an “other consideration” (see CB 38).

66    In my view, the question of the timing of the decision is not susceptible to the application of principles drawn from Li and Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280 in the way argued by the applicant. If the Minister was under a positive obligation not to make a decision when he did, then the decision would be liable to be set aside, whatever its content and whatever its conclusion. But there was no such obligation. In any event, it would be impossible to satisfactorily decide what delay would be necessary – e.g. a matter of days (as the applicant suggested) or weeks or months. If the required delay was a matter of days it is impossible to conclude that evaluation of the interests of this particular child should be different just because the guidance in Ministerial Direction No. 55 (by which the Minister was not bound in any event) would suggest allocation of this circumstance to “primary” rather than an “other” consideration.

67    Ground 3 is not made out.

Ground 4

68    The matters raised under this ground overlap with those in Ground 1 to an extent, but here the focus is on the content of the notion of “national interest”.

69    The applicant’s first argument under this ground is that it was not permissible for the Minister to take into account the applicant’s past conduct, except for the purpose of assessing future risk to the Australian community because to do so would involve “an impermissible purpose of punishment”. In my view, the proposition is stated too broadly. Although there may be room for anxious consideration in a particular case whether visa cancellation was inflicted solely or substantially to mete out a further punishment (see NBMZ per Allsop CJ and Katzmann J at [28]-[31]), there can be no doubt that consideration of the circumstances of particular offences may be relevant to an assessment of the national interest (see Madafferi, referred to earlier).

70    However, assessment of the national interest must be for the purpose of assessing whether a visa should be cancelled. It is inherently forward looking.

71    Cancellation of the applicant’s visa, the applicant’s counsel argued further, can have no bearing on the cost of medical care of the applicant’s victim and it cannot bear upon an assessment of the national interest. It is arguable, therefore, that this circumstance was irrelevant to any consideration of the national interest. Having regard to the brief, almost staccato, way in which this part of the Minister’s Statement of Reasons is expressed in paragraph 22, without any development, in that part of the reasons about the national interest, that argument is not without some appeal.

72    However, I have decided that such an approach would be too strict and would involve reading this part of the Minister’s Statement of Reasons without the full context provided by the conclusions expressed after later discussion about other issues.

73    In his conclusions, the Minister said:

59.    In reaching my decision, I concluded that, given the nature and seriousness of Mr JIONE’s offending, Mr JIONE does not pass the character test and it is in the national interest to cancel his visa. Mr JIONE’s offending involved a violent attack on the victim, who has sustained significant and permanent injuries and has had the quality of his life severely reduced. The offence also caused harm to the victim’s immediate family and an ongoing cost to the community. The seriousness of Mr JIONE’s offending is also reflected in the lengthy term of imprisonment imposed by the court.

60.    Mr JIONE’s offending is contrary to the Australian community expectations that visa holders respect and abide by Australian laws, values and standards. A non-citizen who has committed a serious offence involving significant violence should generally expect to forfeit the privilege of staying in Australia.

61.    I formed the view that Mr JIONE poses an unacceptable risk of harm to the Australian community. While I am satisfied that Mr JIONE poses only a low risk of re-offending, the nature of his offending and the harm that could result if he were to repeat it means that any risk is unacceptable.

62.    I considered that the protection of the Australian community outweighs the countervailing considerations in this matter, including Mr JIONE’s remorse and rehabilitation to date, the best interests of his minor children, his ties to the Australian community and any hardship that he, his family members and friends in Australia would experience if his visa is cancelled, in particular his pregnant fiancée Ms Howe. I consider it is in the national interest that Mr JIONE’s visa is cancelled.

(Emphasis added.)

74    When the passage emphasised in the above extract (which reflects the conclusion in paragraph 22, earlier set out) is read in this context it is easier to detect a general and legitimate concern based upon a policy (which the Minister was entitled to take into account) that residence in Australia involves a privilege accompanied by the necessity to respect Australian laws, values and standards and the interests of the community at large.

75    I am not able to conclude, in the applicant’s favour, that consideration of the consequence of the applicant’s conduct in terms of the economic cost to the community, as well as the seriousness of the conduct itself, was not a relevant and legitimate factor to take into account, subject to the applicant being put on adequate notice.

76    The final argument under Ground 4 was that the costs concerned were not “national” because they include State government costs which could not be taken into account in the national interest. I reject this contention.

77    Ground 4 is not made out.

Conclusion

78    I am satisfied that the applicant was denied procedural fairness for the reasons expressed in relation to Ground 1.

79    The Minister’s decision will therefore be set aside with costs and the applicant will be granted prerogative relief generally in the form sought.

Associate:

Dated:    3 March 2015