FEDERAL COURT OF AUSTRALIA

Rangiwai v Minister for Immigration and Border Protection [2015] FCA 621

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the costs of the respondent, to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

1    This is an application by Mr Rangiwai, a New Zealand citizen, under s 476A of the Migration Act 1958 (Cth) (the Migration Act). The application concerns a decision of the Minister for Immigration and Border Protection (the Minister) on 17 September 2014 that Mr Rangiwai’s Class TY Subclass 444 Special Category (Temporary) visa be cancelled. The applicant seeks orders for certiorari to quash the decision, prohibition to restrain the Minister from giving effect to the decision, and mandamus requiring the Minister to reconsider the decision to cancel the visa according to law.

2    The grounds of the application are as follows:

1.    The respondent’s decision was a [sic] disproportionate and therefore unreasonable and was a jurisdictional error.

2.    The jurisdictional facts necessary to find the decision was in the ‘national interest’ did not exist and therefore the respondent did not have jurisdiction to make the decision. As such the decision was infected with jurisdictional error.

3.    (a)    In accordance with general proposition 5 set out in Collector of Customs v Pressure Tankers and Pozzolanic (1993) 43 FCR 280 (9 July 1993), the facts did not exist to support a conclusion that it was in the ‘national interest’ for the visa to be cancelled.

(b)    Hence it was an error of law to find that it was in the ‘national interest’ that the visa be cancelled.

(c)    The error of law amounted to a jurisdictional error.

4.    Given that the Administrative Appeals Tribunal, after a full hearing, had overturned the earlier decision by the delegate of the then Minister for Immigration and Citizenship to cancel the applicant’s visa, there were insufficient considerations raised in the material before the respondent to raise issues of ‘national interest’ to support the cancellation of the visa. Hence the decision was unreasonable and was therefore done in jurisdictional error.

5.    The respondent failed to conduct a proper, genuine and realistic consideration to the merits of the applicant’s case which is a jurisdictional error.

Background

3    The background facts are not in contention. They are set out in detail in a decision of the Administrative Appeals Tribunal (the Tribunal), which decision is relevant to this application for reasons I will explain shortly. The following summary of the background facts is taken from the decision of the Tribunal.

4    Mr Rangiwai was born in New Zealand in 1987. On 3 May 2012 he was convicted of an offence of unlawfully and indecently dealing with his niece, a child under the age of 16 years, who at the relevant time was in his care. Mr Rangiwai was sentenced to imprisonment for 18 months, suspended for three years after serving six months. The relevant acts were committed by the applicant on 2 October 2010, at a time when the applicant was 23 years old. It is not in dispute that Mr Rangiwai had been drinking alcohol heavily prior to the incident giving rise to the offence, and indeed this was recognised by the sentencing Judge. The applicant had no other criminal convictions in either New Zealand or Australia.

5    The applicant was released from prison on 2 November 2012 after serving six months in prison.

6    On 15 November 2012 the delegate of the Minister cancelled the applicant’s visa. Notice of that cancellation was given to the applicant the following day.

Relevant legislation and Ministerial Direction

7    Under s 501(2) of the Migration Act, the Minister may cancel a visa if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that he or she passes the character test. Subsections 501(6) and (7) provide relevantly:

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7))

…

…

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

(a)    …

(b)    …

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

8    In exercising the discretion under s 501(2), a person or body must comply with any direction given by the Minister under s 501(1). The Tribunal identified “Direction No 55 – Visa Refusal and Cancellation under s 501 of the Migration Act” as such a direction. The objectives of Direction 55 are stated in para 6.1. Paragraph 6.1(3) in particular provides:

The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act to refuse to grant a visa to, or to cancel the visa of, a person who does not satisfy the Minister that the person passes the character test. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

9    Paragraph 6.3 of the Direction sets out the following principles:

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

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

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

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

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

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

10    Paragraph 7 and para 8 of Direction 55 refer to the manner of decision-making in the following terms:

7.    How to exercise the discretion

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

a)    must take into account the primary and other considerations referred to below, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; and

b)    is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.

8.    Taking the relevant considerations into account

(1)    Decision-makers must take into account the primary and other considerations relevant to the individual case, noting that there are differing considerations for visa holders and visa applicants as articulated in Parts A and B. Separating the considerations for visa holders and visa applicants recognises that persons holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

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

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

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

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

11    Paragraph 9 sets out the primary considerations for the decision-maker to take into account in considering whether to cancel the relevant visa, namely:

(a)    Protection of the Australian community from criminal or other serious conduct (explained further in paragraph 9.1);

(b)    The strength, duration and nature of the person’s ties to Australia (explained further in paragraph 9.2);

(c)    The best interests of minor children in Australia (explained further in paragraph 9.3);

(d)    Whether Australia has international non-refoulment obligations to the person (explained further in paragraph 9.4).

12    Paragraphs 9.1, 9.2, 9.3 and 9.4 of the Direction elaborate on considerations in para 9. Paragraph 10 sets out other considerations which may be relevant.

13    The Minister is empowered by s 501A to personally revisit the decision of a delegate or the Tribunal in respect of the refusal or cancellation of a visa. Section 501A provides:

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.

Action by Minister--natural justice does not apply

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

(4)    The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).

(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.

Note 1: For notification of decisions under subsection (2), see section 501G.

Note 2: For notification of decisions under subsection (3), see section 501C.

Decision of the Tribunal

14    The applicant applied to the Tribunal for review of the Minister’s decision of 15 November 2012 to cancel the applicant’s visa. In a decision delivered on 27 March 2013 (Rangiwai and Minister for Immigration and Citizenship [2013] AATA 171) the Tribunal set aside the Minister’s decision, and substituted a decision that the Minister’s discretion under s 501(2) of the Migration Act should not be exercised to cancel the applicant’s visa. In summary, the Tribunal found as follows:

    In relation to the issue of protection of the Australian community from criminal or other serious conduct (para 9(a) and para 9.1 of Direction 55):

○    the applicant’s conviction was in respect of a sexual crime and sexual crimes are viewed very seriously;

○    the applicant’s crime was committed against his 14 year old niece. Crimes committed against vulnerable members of the community such as minors are serious;

○    no further crimes were committed by the applicant while in immigration detention or thereafter;

○    the sentence imposed by the Emerald District Court was a period of imprisonment of 18 months, suspended for three years after serving six months, when the maximum possible sentence was 20 years;

○    the applicant had only one criminal conviction, namely that concerning the indecent dealing with his niece. He had committed no other offences in respect of which a conviction has been recorded and there was no trend to speak of;

○    the applicant did not appear to have provided false or misleading information to the Department of Immigration and Citizenship (as it then was) and had fully disclosed prior criminal offending;

○    the report of the psychologist who interviewed the applicant on 4 February 2013 indicated that the risks to the Australian community from the applicant were low;

○    this was a case in which the community would accept a reasonable degree of tolerance in its attitude towards whether the applicant should be permitted to remain in Australia.

    In relation to the strength, duration and nature of the applicant’s ties to Australia (para 9(b) and para 9.2 of Direction 55), the applicant first arrived in Australia in 2007 when he was almost 20 years old. Most of his family resided in New Zealand. The only close relatives in Australia were his sister (who was the mother of his niece) and an aunt and uncle. In respect of work, he had made a significant contribution through diligent work in the local community, he had a good track record as an employee, and his employer continued to think highly of him.

    In relation to issue of the best interests of minor children in Australia (para 9(c) and para 9.3 of Direction 55), the only minor child in Australia likely to be affected by the cancellation of the applicant’s visa was his niece, who had been detrimentally affected by his conduct.

    In relation to the considerations set out in para 9(d) and para 9.4 of Direction 55, Australia does not appear to have any international non-refoulment obligations of relevance to this case.

    In relation to other considerations to which the Tribunal should have regard under para 10 of Direction 55:

○    it was apparent that he applicant’s niece had been severely traumatised by the relevant incident and the applicant had avoided further contact with her;

○    there had been some reconciliation with the victim’s mother, and both she and other family members were supportive of the applicant;

○    having regard to the applicant’s youth, good health, family in New Zealand and absence of any language or cultural barriers to him in New Zealand, it was likely that there would be opportunities available to him in New Zealand;

○    under oath the applicant indicated that he had given up alcohol of any kind and had a firm commitment to continue to abstain.

15    After balancing all consideration, at paragraph 93 of its decision, the Tribunal concluded:

… in view of:

•    Mr Rangiwai’s unblemished criminal record apart from one criminal conviction considered previously;

•    Mr Rangiwai’s positive contribution to the Australian community through his work over more than four years;

•    The fact that the sentencing judge handed down a sentence at the lower end of the relevant spectrum; and

•    The low risk of reoffending,

the decision to exercise the Minister’s discretion to cancel Mr Rangiwai’s visa should be set aside and a decision substituted that the Minister’s discretion under s501(2) of the Migration Act should not be exercised to cancel Mr Rangiwai’s visa …

Decision of Minister under section 501A

16    By letter dated 23 September 2014 the Minister informed the applicant that he had decided to set aside the decision of the Tribunal of 27 March 2013 and cancel the applicant’s visa pursuant to s 501A of the Act. The reasons of the Minister were as follows:

CHARACTER TEST

7.    The character test is defined in subsection 501(6) to include:

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); …

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

…

(b)    the person has been sentenced to imprisonment for life; or

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

(d)    the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms or 2 years or more; or

(e)    the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.

8.    The relevant ground of the character test in this case is paragraph 501(6)(a): the person has a ‘substantial criminal record’, as defined by paragraph 501(7)(c) of the act.

9.    On 3 May 2012 Mr Rangiwai was convicted in the District Court of Queensland at Emerald of the following offence and sentenced as shown

•    Indecent Treatment of A child Under 16 and Under Care – Imprisonment 18 months

10.    I reasonably suspect that Mr Rangiwai does not pass the character test (as defined by paragraph (6)(a) of section 501) and find that he has not satisfied me that he passes the character test.

NATIONAL INTEREST

11.    In deciding whether it is in the national interest to cancel Mr Rangiwai’s visa, I have considered the nature and seriousness of Mr Rangiwai’s conviction of Indecent Treatment of A Child Under 16 and Under Care. The conviction for the crime which was:

•    of a sexual nature;

•    committed against a vulnerable person, a child under 16 years of age; and

•    particularly abhorrent due to the breach of trust by Mr Rangiwai considering he was the victim’s uncle and a ‘confidante’.

12.    In light of the above information regarding the nature and seriousness of the offending, I consider that cancellation of Mr Rangiwai’s visa is in the national interest, given the very serious nature of the offending. The seriousness of the offending is heightened by the sexual nature of the offence, the vulnerable nature of the victim, and the breach of trust by Mr Rangiwai.

DISCRETION

13.    Having found that Mr Rangiwai 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 attachments and considered whether to exercise my discretion to set aside the Tribunal’s decision and to cancel Mr Rangiwai’s visa. In doing so, I was mindful of the commitment of the Australian government to protect the Australian community from harm that may result from criminal activity or other serious conduct by non-citizens.

14.    I gave key consideration to the protection of the Australian community (taking into account the seriousness and nature of the conduct and the risk to the community should the conduct be repeated), ties to Australia, the best interests of any minor children in Australia and relevant international obligations.

Relevant considerations

Criminal conduct

15.    I consider that sexually based offences are very serious. Mr Rangiwai was convicted of a sexual offence, namely Indecent Treatment of A Child Under 16 and Under Care.

16.    Offences against vulnerable victims, such as children are especially heinous and any form of child exploitation or abuse which can result in harm to a child’s mental health and welfare is contrary to community values and unacceptable. Mr Rangiwai was convicted of indecently treating his 14 year old niece whilst she was under his supervision. The offence perpetrate against his victim was sexual in nature and involved a significant breach of trust.

17.    I find that Mr Rangiwai’s mistreatment of the victim caused extreme distress to the victim and her family which increases the seriousness with which his offending is viewed.

18.    I note the sentencing judge’s findings that the act committed by Mr Rangiwai against the victim was deliberate and non-consensual.

19.    Mr Rangiwai was sentenced to 18 months imprisonment, and ordered to serve six months in prison. The court decided to suspend the remainder of the sentence (12 months), setting an operational period of three years. The Tribunal found that the sentence imposed by the trial judge was at the lower end of the scale, given the maximum penalty could have been 20 years imprisonment.

20.    Nonetheless, I find that a sentence involving imprisonment of the offender is a last resort in the sentencing hierarchy and the imposition of 18 months imprisonment for the offence detailed above, is indicative of the serious nature of the crime.

21.    Mr Rangiwai has also been convicted in the Emerald Magistrates Court on 18 June 2013 of Fail to Comply With Reporting for which he received a fine. Although the offence and the associated sanction may appear to be relatively minor, I nevertheless view Mr Rangiwai’s non-compliance as a matter of concern and find that this behaviour indicates an unwillingness on Mr Rangiwai’s part to comply with court imposed obligations.

22.    Apart from the convictions stated above, Mr Rangiwai has no other convictions recorded against him in Australia or overseas and no breaches of judicial orders.

23.    I have also considered the harm that may result if Mr Rangiwai reoffends. His offence was against a vulnerable victim, causing distress and disruption to her life. Further offending of this nature will cause great harm to vulnerable children and their families.

Mitigating factors and risk of re-offending

24.    I have noted that Mr Rangiwai has expressed remorse and regret for the offence perpetrated against his victim, and this was reflected in his decision to plead guilty at the earliest possible opportunity.

25.    I accept that the sentencing judge’s finding that alcohol consumption was a significant factor in Mr Rangiwai’s offending against the victim.

26.    In sentencing Mr Rangiwai, Judge Reid recommended that Mr Rangiwai undergo intervention programmes either in prison or whilst in the community designed to address any risk factors and to curb any possibility of future sexual offending

27.    The Tribunal noted that Mr Rangiwai had begun alcohol rehabilitation treatment. I note that Mr Rangiwai was unable to attend offence-specific treatment whilst in prison due to ineligibility as the period of his imprisonment was insufficient to complete the course.

28.    I have had regard to professional and objective assessments and the Tribunal’s findings that Mr Rangiwai poses a low risk of reoffending or engaging in similar crimes of a sexual nature.

29.    I note that Mr Rangiwai has only recently sought professional assistance and has attended two sessions with a psychologist commencing in January 2014, with two more scheduled for February 2014. Mr Rangiwai stated that he delayed in seeking treatment because he was detained in immigration detention and this had an impact on his financial position. Mr Rangiwai has expressed a commitment to complete his current counselling programme.

30.    I also accept that Mr Rangiwai displayed acceptable conduct whilst institutionalised, in that he was not subject to any penalties for poor behaviour and completed various vocational courses to promote his employment prospects and to improve efforts towards re-integration.

31.    Since his release into the community I am mindful of the fact that Mr Rangiwai was convicted of a further offence which was directly related to the conditions of his release from custody.

32.    Based on the available material, Mr Rangiwai had stable employment for some time and has been considered by previous employers as honest and displaying a strong work ethic. I note that Mr Rangiwai was out of work but has commenced employment in Maryborough in Queensland on 16 May 2014.

33.    Notwithstanding, Mr Rangiwai’s acceptable conduct in prison, his favourable employment references, and the independent material which places Mr Rangiwai at low risk, in light of Mr Rangiwai’s criminal record I consider that there is an ongoing risk that Mr Rangiwai will reoffend. In concluding that Mr Rangiwai 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.

Ties to Australia

34.    Mr Rangiwai was an adult of 19 years of age when he arrived in Australia in May 2007.

35.    Mr Rangiwai has resided in Australia for over six years and his first offence occurred in October 2010, some three years after his arrival in this country. I consider that the Australian community has a lower tolerance for criminal or other serious conduct committed by a person who had been participating in, and/or contributing to, the Australia community only for a short period of time before the offending occurred. This is something that I must also bear in mind as Mr Rangiwai had only been in Australia for a relatively short period before he commenced offending.

36.    I note that Mr Rangiwai does not have substantial familial connections to Australia. His parents, four of his siblings and his child are all in New Zealand, and are New Zealand citizens. It thereby follows that he has strong family bonds to New Zealand. I recognise that his sister is living in Australia and that the victim of his crime is her daughter. Given the circumstances of Mr Rangiwai’s crime which involved the indecent treatment of his niece, I am aware that extreme distress was caused to the family and that relations may have been impacted as a result, even though there has been some degree of reconciliation with his sister and that while the victim has indicated that she may re-build the relationship in the future, available evidence indicates that there is no current relationship. In addition, I note that Mr Rangiwai has an uncle and aunt in Australia who ‘sporadically’ see him.

37.    I accept that Mr Rangiwai has formed a close bond with his previous employer and his family, who have been supportive and consider Mr Rangiwai to be trustworthy, however he no longer resides with them and in fact is physically separated from them by over 600 km.

38.    I am mindful that Mr Rangiwai has had employment in the construction industry as a carpenter in Australia and was considered to be highly skilled in his trade by a former employer. Mr Rangiwai had indicated that he was unemployed and planned to travel to Brisbane where he had work opportunities. Mr Rangiwai has now advised that he has commenced employment with a truss building firm in Maryborough Queensland.

39.    Having regard to the available information, I am not satisfied that Mr Rangiwai has enduring and strong ties to Australia apart from some employment and social ties and that his family ties are currently not strong.

Best Interests of Minor Children in Australia

40.    The evidence available to the department does not indicate that Mr Rangiwai has any biological children in Australia whose best interests may be affected by the cancellation of his visa.

41.    I accept that Mr Rangiwai may have an affectionate relationship with his former employer’s children but they have their own parents. I accept that removal of Mr Rangiwai from Australia may cause some emotional distress in these children.

42.    I find that cancellation of Mr Rangiwai’s visa is not in the best interest of these children, given the nature of his relationship with them and as they have their parents to care for them, I give this criterion less weight.

International Obligations

43.    I note that Mr Rangiwai did not make any claims which require assessment in relation to Australia’s international non-refoulment obligations, nor are any claims apparent from the material available.

Other (non-primary) Considerations

44.    I have taken into account that Mr Rangiwai has concerns in returning to New Zealand and the challenges he will face in finding employment and re-establishing himself there. I am aware that he arrived in Australia as an adult and is familiar with the culture in New Zealand and will not face any language or cultural barriers.

45.    Mr Rangiwai is young and has no apparent health concerns and with his skills and relatively good work ethic will be afforded opportunities in New Zealand. He will have the support of pre-existing social and family networks to overcome any undue hardships, and will be able to access income assistance from the social welfare system in New Zealand, which is comparable to that available in Australia for Australian citizens, in order to maintain a basic standard of living and to avoid financial destitution.

46.    Mr Rangiwai has close family members residing in New Zealand, his parents, the majority of his siblings and his biological son, who is a minor.

CONCLUSION

47.    I have considered all relevant matters including (1) an assessment against the character test as defined by subsection 501(6) of the Migration Act 1958, (2) whether cancelling Mr Rangiwai’s visa was in the national interest and (3) all other evidence available to me, including evidence provided by, or on behalf of Mr Rangiwai.

48.    In reaching my decision I concluded that it was in the national interest to cancel Mr Rangiwai’s visa and find that some offending, such as child sex offences, are so serious that any risk of reoffending is unacceptable. I find that Mr Rangiwai’s crime against his vulnerable niece which involved a sexual element and a breach of trust to be abhorrent and contrary to prevailing community values.

49.    It is the general view in the community that a non-citizen who has committee a crime of sexual nature, particularly against vulnerable members of the community, such as children, should generally expect to forfeit the privilege of staying in Australia.

50.    I also considered the countervailing considerations in Mr Rangiwai’s case including his employment and social ties to Australia which are limited. I note Mr Rangiwai arrived as an adult and in making my decision, I have taken the view that despite his six year absence from that country, Mr Rangiwai’s return to New Zealand would not cause him undue hardship given his age, good health, skills and extended family network.

51.    I also find that the Australian community would be exposed to great harm should Mr Rangiwai reoffend in a similar manner. I could not rule out the possibility of further reoffending by Mr Rangiwai and find that his offending is of a nature such that any risk of recurrence is unacceptable to the Australian community. In addition, I note his most recent failure to report as required. The Australian community should not tolerate any further risk of harm in this case, no matter how small. I found these factors outweighted any countervailing considerations in Mr Rangiwai’s case.

Submissions of the applicant

17    The submissions of Mr Boccabella for the applicant in support of the grounds before this Court focused on five areas, namely:

    The decision of the Minister was infected by jurisdictional error because the decision to cancel the visa was a disproportionate response to the facts.

    Whether the “national interest” can be invoked was a jurisdictional fact.

    An issue of statutory interpretation described as “the Pozzolanic Point”.

    The general unreasonableness of the Minister’s decision.

    The Minister failed to conduct a proper, genuine and realistic consideration of the merits of the case.

18    In summary the applicant submitted as follows:

    The Minister has power to overturn a valid decision of the Tribunal only in the national interest.

    The concept of proportionality applies to the exercise of the Minister’s discretion, as a disproportionate response can lead to a conclusion of unreasonableness: Minister for Immigration v Li (2013) 249 CLR 332.

    A review of the sentencing decisions of the State courts through Australia would reveal that this offence is at the lower end of the scale of sexual offences. This was recognised by the Tribunal.

    The Minister has confused his task to make a determination of what is in the “national interest” under s 501A with what a primary decision maker has to do under s 501(2). Accordingly, the Minister only has a power to overturn the decision of the Tribunal where the Minister is satisfied that it is in the “national interest” to do so.

    It is a disproportionate response of the Minister to determine that it is in the “national interest” to cancel the applicant’s visa. The Minister did not identify any error in the decision of the Tribunal, or identify how the decision of the Tribunal did not accord with the “national interest”. The decision of the Minister is unreasonable, and is thus infected by jurisdictional error.

    The jurisdiction of the Minister to overturn the Tribunal’s decision turned on whether as a jurisdictional fact the national interest can be invoked: Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135.

    There are insufficient facts as found by the Minister to determine that the “national interest” has been invoked in order to give him jurisdiction to make the decision.

    Principles set out in Collector of Customs v Pressure Tankers and Pozzolanic (1993) 43 FCR 280 at [23] were endorsed by the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 in relation to the practical restraints on judicial review and whether particular questions are of law or of fact. What is in the “national interest” is a question of law as it is a question whether facts fully found fall within the provision of a statutory enactment properly construed. In either case there is no jurisdiction to overturn the decision of the Tribunal unless the facts establish that it is in the “national interest” to do so.

    While the plurality judgment Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 considered the concept of the Minister having regard to the national interest, paragraphs 11 and 12 of the Minister’s decision in this case do not address the merits of the case, but rather are perfunctory.

    Section 25D of the Acts Interpretation Act 1901 (Cth) requires a person giving written reasons to set out the findings on material questions of act and refer to the evidence or other material on which those findings are based. Section 25D applies in this case.

Consideration

19    The decision of the Minister the subject of this application is a privative clause decision within the meaning of s 474 of the Migration Act. A privative clause decision can be the subject of challenge if it is infected by jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

20    Section 501A was inserted into the Act by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth) (the Strengthening Act) and was subsequently amended by the Migration Legislation Amendment Act (No 1) 2001 (Cth). The Explanatory Memorandum to the Strengthening Act states in respect of s 501A:

59.    New subsection 501A(1) provides that section 501A (inserted by this Act) applies where a visa is granted or remains in effect as a result of a decision, by a delegate of the Minister or by the AAT (“the original decision”), not to exercise the power contained in subsection 501(1) or (2) respectively (as inserted by this Act).

60.    New subsections 501A(2) and (3) allow the Minister to set aside the original decision and substitute a less favourable decision (that is, the Minister may decide to refuse to grant or cancel a visa) where the Minister is satisfied that it is in the national interest to refuse to grant or cancel the visa and either:

•    the Minister reasonably suspects the person does not pass the character test and the person does not satisfy the Minister that the person passes the character test (defined in subsection 501(6) inserted by this Act) (new subsection 501A(2)); or

•    the Minister reasonably suspects the person does not pass the character test (new subsection 501A(3)).

21    Further light is cast on s 501A of the Migration Act by the second reading speech of the Minister introducing the Bill which, enacted, became the Strengthening Act, and in particular the following statements:

In broad terms, the bill seeks to enhance the Government’s ability to deal with non-citizens who are not of good character in three ways:

. First …

. Secondly, in exceptional or emergency circumstances, the Minister, acting personally, will be given powers to act decisively on matters of visa refusal, cancellation and the removal of non-citizens

…

…

Minister’s power to intervene or set aside Administrative Appeals Tribunal decisions

Over the past 12 months or so, the AAT has made a number of character decisions that are clearly at odds with community standards and expectations. The AAT has found a number of non-citizens, who have been convicted of very serious crimes, to be of good character, and has ruled that they should be granted a visa. This has alarmed the community and I might say the community, when they are aware of these decisions, hold the Government and not the AAT responsible.

It is essential that the Minister, acting personally, have the power to intervene or set aside such decisions in the national interest. The Minister should, however, continue to be required to table the making of any such decisions in the Parliament.

…

…

Once the visa is cancelled, the non-citizen will have a right to make a submission to the Minister as to why the cancellation should be revoked. Natural justice will apply in such cases. However, if they cannot satisfy the Minister that they pass the character test, they should be removed immediately. Parliament should be notified of the making of such decisions but the decisions should not be subject to merits review because of their national significance.

(Senator Kemp, Commonwealth of Australia, Parliamentary Debates, The Senate, Wednesday, 11 November 1998, Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998 (No 2), Second Reading Speech, pages 59, 61.)

22    The “national interest” is a broad criterion (Durani v Minister for Immigration and Border Protection (2014) 314 ALR 130 at [61]). The term was discussed in some detail in Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 where the Full Court accepted that 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. Their Honours in that case observed further 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 (Madafferi at [86]).

23    Similarly, in Re Patterson; Ex parte Taylor (2001) 182 ALR 657 at 675, Gaudron J observed that convictions of a sufficiently serious character can lead the Minister to the conclusion that cancellation of the person’s visa is in the national interest. In the same case, Kirby J said at 742:

However broad may be the jurisdiction conferred by the constitutional writs, they do not permit a court to substitute for the satisfaction of the minister, provided by the Act of Parliament, the satisfaction of judges who are not accountable to the Parliament or the people in the same way as the minister.

24    It is interesting to note however that Kirby J also considered important the words of the Minister in the Second Reading Speech that the Minister’s intervention would occur only in “exceptional or emergency” situations. As the Full Court in Madafferi observed, considering the decision in Re Patterson:

89.    With respect to that view, the bar of national interest does not seem to be set that high by the words of the Act which must be the primary guide to legislative intention. 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 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 (755).

25    While in his reasons the Minister had regard to the decision of the Tribunal (for example, at paras 5, 6, 13, 27 and 28), the clear intention of Parliament in respect of s 501A of the Migration Act is to empower the Minister to, in essence, “override” the decision of the Tribunal if he or she considers it is in the national interest to do so. It is not necessary for the Minister to identify an error in the decision of the Tribunal where the Minister forms a view as to the national interest in the relevant case. The reliance by the applicant on Pozzolanic within the terms of his ground 3, as support for the contrary proposition is, in my view, misconceived. Similarly, the applicant’s claim in ground 4, that the decision of the Minister was generally unreasonable because the Minister did not identify errors in the decision of the Tribunal, cannot be substantiated.

26    A determination of what is in the “national interest” is for the Minister, not the Court (Kirby J in Re Patterson at 742). I note and adopt the comments of Tamberlin J in Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 959 that, so far as concerns the “national interest”:

The range of considerations which can be taken into account when applying such a broad concept is wide and the Court must not substitute its views for those of the Minister where on the face of the decision the power has been exercised in a proper manner and it appears that the Minister has acted within the limits of making a decision which appears to have been reasonably open.

27    The decision reached by the Minister in this case that cancellation of the applicant’s visa was in the national interest was an evaluative one, clearly founded on the nature of the offence committed by the applicant. That the Minister is entitled to found his decision on the offence and circumstances relevant to the offence is clear from the views expressed in Re Patterson and Madafferi.

28    The applicant submits that allocation of disproportionate weight to one factor over another in reaching a decision can be unreasonable. This submission correctly states the law. However as was explained by French CJ in Minister for Immigration v Li (2013) 249 CLR 332 at [76], to achieve such a result the decision itself must lack an evident and intelligible justification. It is not sufficient that the applicant takes the view that more weight should have been attributed by the Minister to other factors. The decision of the Minister in this case was open on the material. The applicant’s submission that the decision of the Minister was flawed, because of the weight placed by the Minister upon the nature of the offence and related circumstances, invites, in this case, an inappropriate merits review of the Minister’s decision. I am not satisfied that the decision of the Minister in this case was unreasonable within the meaning of that term explained by the High Court in Li because the Minister placed greater weight on the nature of the offence and related circumstances than other factors. Ground 1 is not substantiated.

29    The applicant claimed that jurisdictional facts necessary to find the decision was in the “national interest” did not exist and therefore the respondent did not have jurisdiction to make the decision. In my view this claim cannot be substantiated. It is clear from paragraph 6 of the statement of reasons that the Minister recognised that he must be satisfied that the cancellation of the visa is in the national interest prior to the exercise of the Ministerial discretion pursuant to s 501A of the Migration Act. At paragraphs 11 and 12 of the statement of reasons, the Minister clearly turned his mind to the question whether the national interest supported a decision that the applicant’s visa be cancelled, by reference to the nature of the offence committed by the applicant. In particular, those reasons included:

    “the very serious nature of the offending”;

    the heightening of the seriousness of the offending by “the sexual nature of the offence, the vulnerable nature of the victim, and the breach of trust by” the applicant;

    the “particular abhorrence” of the crime due to the breach of trust by the applicant as he was the victim’s uncle and a “confidante”.

30    The Minister was satisfied that cancellation of the visa was in the national interest. It follows that the necessary jurisdictional facts existed, as a precondition to the decision of the Minister to cancel the visa pursuant to s 501A. It follows that ground 2 has no merit.

31    Finally, the applicant made extensive submissions based on ground 5, namely that the Minister failed to conduct a proper, genuine and realistic consideration of the merits of the applicant’s case. The applicant referred in particular to the decision of the Full Court of this Court in Huynh. In the present case, even assuming that the Minister was required to conduct a proper, genuine and realistic consideration of the applicant’s case, there is nothing before me to indicate that the Minister did not do so. Rather, the decision of the Minister contains a detailed consideration of the circumstances of the applicant, the nature of his offence, and relevant factors. This is particularly apparent from the careful examination of the details of the applicant’s case at paragraphs 15-23 of the decision, and the examination of factors specific to the applicant at paragraphs 24-46. In my view ground 5 has no merit.

32    The appropriate order is to dismiss the application, with costs to be taxed if not otherwise agreed.

Associate:

Dated:    22 June 2015