FEDERAL COURT OF AUSTRALIA

AZAFQ v Minister for Immigration and Border Protection [2015] FCA 681

THE COURT ORDERS THAT:

1.    The Applicant’s application for judicial review be dismissed.

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

REASONS FOR JUDGMENT

1    On 23 October 2014, the Minister for Immigration and Border Protection cancelled the applicant’s visa, pursuant to s 501 of the Migration Act 1958 (Cth). He did so on the ground that the applicant’s substantial criminal record, as defined in subs (7), meant that he did not pass the character test defined in subs (6). The applicant now seeks judicial review of the Minister’s decision, under s 476A of the Migration Act.

2    The applicant does not dispute that he has a substantial criminal record and accepts that the Minister’s discretion under s 501 was enlivened. His claim is that the Minister failed to consider two relevant considerations and that the decision is unreasonable in the legal sense.

Background

3    The applicant, who is 28 years old, was born in Khartoum which is now in the Republic of Sudan. He has been living in Australia since October 2003 on a Class XB Subclass 200 (Refugee) visa.

4    The applicant has a substantial criminal record, having been dealt with by courts since 2005 for some 70 offences. Some of these have been traffic offences and breaches of bail. However, several have been more significant, involving burglary, the carrying or use of offensive weapons, and assaults. Two of the applicant’s court appearances are particularly pertinent presently. On 20 July 2010, the applicant was sentenced in the Adelaide Magistrates Court for five offences of aggravated assault, three offences of assaulting police and one offence of aggravated assault causing harm. The victims of the five offences of aggravated assault were members of the public travelling on a bus. The Magistrate imposed a single sentence of imprisonment for 12 months and 21 days in respect of these offences.

5    The Magistrate also dealt with a number of other offences, including unlawful damage, loitering, fighting, resisting police and two offences of disorderly behaviour. Although the applicant was convicted of each of these offences, no additional penalty was imposed.

6    On 9 March 2012, a Judge of the District Court of South Australia sentenced the applicant to imprisonment for four years and four weeks for the offence of aggravated assault causing harm with intent to cause harm. That offence was committed on 1 April 2010. The victim was a visitor to the home of the applicant and his brother. The applicant’s brother had begun to bully the visitor, prompting him to leave. However, the applicant and his brother pursued him. On catching up with him, the applicant’s brother struck the visitor on the head with a baseball bat, causing a fractured skull. Although it was the applicant’s brother who struck the blow, the sentencing Judge considered that there was no difference in their culpability. The Judge imposed a non-parole period of three years and three weeks.

7    Section 501 of the Migration Act, as in force at relevant times, vested a discretion in the Minister to refuse or cancel a visa on character grounds. It provided (relevantly):

(2)    The Minister may cancel a visa that has been granted to a person if:

(a)    the Minister reasonably suspects that the person does not pass the character test; and

(b)    the person does not satisfy the Minister that the person passes the character test.

....

(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)); or

...

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

...

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

...

8    Hence, the sentences imposed on 20 July 2010 and 9 March 2012 enlivened the Minister’s discretion under s 501. On 25 September 2013, the Department informed the applicant that the Minister, or the Minister’s delegate, intended to consider cancellation of his visa. The notice indicated that it replaced an earlier notice issued on 3 November 2011 in relation to which a decision had been deferred. It invited submissions from the applicant.

9    The applicant, with some assistance from the Legal Services Commission of South Australia, provided a submission and supporting material which resisted cancellation of his visa. Further material was provided over the next several months.

10    Ultimately, on 23 October 2014, the Minister exercised his discretion adversely to the applicant, relying in particular on the sentence imposed by the District Court of South Australia as enlivening the discretion under s 501.

11    Once the pre-conditions to its exercise are satisfied, the discretion conferred on the Minister by s 501 is, in its terms, unfettered. In particular, the Minister is not bound by “Direction No 55 – Visa refusal and cancellation under s 501” issued under s 499(1) of the Act, which his delegates must follow. None the less, the Minister’s discretion is subject to certain limitations. The Minister may not act arbitrarily, capriciously or legally unreasonably: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at [6]. The subject matter, scope and purpose of the statute may also indicate some matters which the Minister must consider: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 per Mason J. One such mandatory consideration is the legal consequences of the decision: NBMZ at [7]-[10], [206]-[208].

Ground 1.1 – Risk of re-offending

12    The applicant contended that the Minister had failed to have regard to two relevant considerations. The first was whether he was likely to re-offend such that the Minister could conclude that his remaining in Australia amounted to a unacceptable risk to the community.

13    This contention was founded in the following paragraphs of the Minister’s reasons:

[39]    I formed the view that [the applicant] poses an unacceptable risk of harm to the Australian community. He has caused ongoing harm to at least one of his victims. If he were to commit further violent offences, his victims could suffer serious physical and/or psychological injuries, the effects of which could be grave. I found that [the applicant] still poses a risk of re-offending, and that the nature of his offending and the harm that could result if he were to repeat it, means that this risk is unacceptable.

[40]    I concluded that the protection of the Australian community outweighed [the applicant’s] remorse and rehabilitation to date, the best interests of his minor siblings, his ties to the Australian community, and the hardship he and his adult family members in Australia would experience if his visa is cancelled.

14    Counsel submitted that in reaching these conclusions, the Minister had failed to consider separately the likelihood of the appellant re-offending in a way likely to cause harm to a victim as well as the extent of the harm likely to be inflicted if that risk was realised.

15    In support of the proposition that the Minister was required to consider both these elements separately, counsel relied on the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673:

[154]    The risk of harm to the Australian community posed by the subject of the visa refusal or cancellation is a matter a decision-maker, including the Minister personally, must take into account in exercising the s 501(2) power. That is because an assessment of such a risk is a necessary part of exercising the power for the purpose for which it was conferred: namely, protection of the Australian community, using "protection" in its broadest sense.

[155]    In turn, a risk of harm posed by an individual can only be ascertained by evaluating the seriousness of any future harm which might be caused and the likelihood of that harm occurring.

16    Counsel submitted that the same reasoning should be applied in the present case.

17    The approach of Mortimer J in Tanielu has not been endorsed in subsequent decisions. In Roesner v Minister for Immigration and Border Protection [2015] FCA 68, Tracey J referred to “on-going debate” as to whether, in exercising the discretion under s 501, the Minister is bound to make an assessment of the risk of an applicant re-offending in all cases: at [21]. Tracey J there referred, by way of illustration, to authority indicating that it is open to the Minister to take the view that some criminal offences are so serious that cancellation of the offender’s visa will be justified without more.

18    In Moana v Minister for Immigration and Border Protection [2014] FCA 1084, Davies J considered that it was unnecessary, in the circumstances of that case, to express a view as to whether the risk of harm that a visa holder poses to the Australian community is a mandatory relevant consideration and whether Tanielu is authority for the proposition that the assessment of risk requires an evaluation of the seriousness of any future harm which might be caused as well as the likelihood of that harm occurring: at [18].

19    On appeal in Moana, Rangiah J (with whom North J agreed) held that, while the Minister must consider the risk of harm to the Australian community, there is generally no obligation on the Minister to conduct that evaluation in a particular way: Moana v Minister for Immigration and Border Protection [2015] FCAFC 54. Rangiah J said:

[71]    If the Minister is to be held to be bound to examine the likelihood of a person engaging in future conduct which may cause harm in every exercise of the discretion under s 501(2), then an implication to that effect must appear from the subject matter, scope and purpose of the Act. It is not enough to argue that principles concerning other statutory provisions with a protective purpose must apply analogously to s 501(2). It is one thing to conclude, as I have, that the Minister must consider the risk of harm, but it is a step removed to decide that the statute contains an implication that the Minister must evaluate the risk of harm in a particular way.

...

[74]    I consider that the Minister is not bound to conduct an evaluation of the likelihood of the visa holder engaging in future conduct that may cause harm when exercising the discretion under s 501(2). That is not to say that evaluation of such likelihood will not be centrally relevant to the exercise of the Minister’s discretion in most cases. The exercise of the discretion to cancel a visa without examining the likelihood of future harm may in some circumstances be unreasonable, in the sense of lacking an evident and intelligible justification: cf Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ. However, s 501(2) cannot be construed to require the Minister to take into account that likelihood in all cases.

20    In a separate judgment, Jessup J said that he considered that Tanielu misstated the law and should not be followed: at [7].

21    The decision of the Full Court in Moana was delivered after the hearing of the present application. Accordingly, I invited the parties to make supplementary written submissions as to its effect. Counsel for the applicant submitted that the effect of the majority reasons in Moana is no more than that the Minister was not required to consider future risk in light of that particular applicant’s circumstances and that it did not preclude the likelihood of future harm being a relevant consideration, nor a failure by the Minister to consider it amounting to jurisdictional error.

22    I do not accept that the reasons of Rangiah J are to be understood in this confined way. As can be seen, the effect of [74] in the reasons of Rangiah J is that s 501 does not require the Minister to conduct an evaluation of the likelihood of the visa holder engaging in future conduct which may cause harm, although the evaluation of such a likelihood may be very relevant to the exercise of the discretion.

23    In my opinion, this approach, being the approach adopted by two members of this Court on appeal, should be followed in the present case. I add that I would regard it as an open question as to whether the sole purpose for which s 501 may be exercised in all cases will be protective.

24    It is not necessary to review the authorities further. That is because I am satisfied that the Minister’s reasons indicate that he did consider both the likelihood of the applicant re-offending and the severity of the consequences if he did re-offend. There are a number of indications that this is so. The Minister referred to the applicant’s history of offending and found that “his record demonstrates a pattern of increasing seriousness of offending”: at [10].

25    In a section of his reasons headed “Mitigating factors and risk of re-offending” the Minister addressed specifically a number of matters bearing upon the prospect of the applicant re-offending. He noted that the District Court Judge in March 2012 had found the applicant “to pose a high risk of re-offending” and that he had a lack of “insight into the role of alcohol as a factor in his criminal conduct”. The Minister noted that the applicant had continued to offend after being sentenced in 2010, despite his expressions of remorse and the rehabilitation and other offence prevention programs he had undertaken. The Minister also noted that, whilst in custody, the applicant had returned some positive drug test results on random testing. He concluded that the applicant’s ability to remain abstinent from drugs was untested: at [16].

26    After referring to support the applicant could expect from his family and in the community while on parole, the Minister concluded:

[18]    I consider that [the applicant’s] current correctional experience, his lengthy period of abstinence in prison, the courses of education and rehabilitation undertaken by him, his current age, his access to stable accommodation and his renewed family and community support are all factors which will serve to reduce the risk of his re-offending. However, having regard to his lengthy criminal history which contains previous violent offences, his numerous past breaches of judicial orders and his untested ability to refrain from substance abuse in the community, I found that [the applicant] poses an ongoing risk of re-offending.

27    It is apparent that in these passages the Minister considered directly several matters bearing on the risk of the applicant re-offending, including the applicant’s criminal history; his past non-compliance with judicial orders; his untested ability to refrain from substance abuse; and the assessments of the applicant by the sentencing courts. It is true that the Minister referred only to a risk of re-offending without attempting to quantify that risk by an adjective or in percentage terms. However, it was unnecessary for him to do so. As Besanko J observed in Coderre v Minister for Immigration and Border Protection [2014] FCA 769; (2014) 143 ALD 675 at [36]:

The applicant accepted that [the Minister] was not required to reach a view about the risk that the applicant would reoffend which could be expressed in percentage terms. I have no doubt that that is correct, but I would go further and say that, in many cases, it is notoriously difficult to be at all precise as to the risk of re-offending.

28    Accordingly, I consider that this part of the application for judicial review is not made out.

Ground 1.2: The legal consequences of the decision

29    The applicant contended that the Minister failed to consider that the legal consequence of his cancellation of the visa was that he may be detained indefinitely in an immigration detention centre. Accordingly, the submission was that the Minister had failed to consider a relevant consideration of the kind discussed in NBMZ at [16]-[18], [24]-[26] and [104]-[114].

30    The contention was made in the following way. Counsel referred first to Art 33 of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (the Refugees Convention):

1.    No Contracting State shall expel or return ('refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2.    The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

31    Counsel contended that, as the applicant had come to Australia as a refugee, this non-refoulement obligation applied in his case.

32    As noted earlier, the applicant came from Sudan. His Refugee Visa was granted to him because he was a dependent of his mother, who, at the time of the grant of the visa in 2003, was a single mother of six children. The Department had accepted that she was owed protection obligations under the Refugees Convention.

33    Counsel noted that, following a Referendum in 2011, the Republic of South Sudan had become independent from Sudan on 9 July 2011. On 28 April 2014, Onshore Protection Victoria provided an assessment of whether Australia owed non-refoulement obligations to the applicant. Following submissions made on the applicant’s behalf, Onshore Protection Victoria provided a further assessment dated 23 June 2014. Both assessments were to the effect that Australia does not have non-refoulement obligations to the applicant.

34    The assessments reported that Sudan will no longer accept the applicant as a citizen of that country but that the Republic of South Sudan would do so. It then reported that, in accordance with the law of the Republic of South Sudan, the applicant is a citizen of that Republic.

35    The assessments did refer to a report of the UNHCR dated 13 February 2014 regarding returns to South Sudan:

As the situation in South Sudan is fluid and remains uncertain, UNHCR recommends that States suspend forcible returns of nationals or habitual residents of South Sudan to the country. Many persons fleeing South Sudan are likely to meet the criteria for refugee status under the 1951 Refugee Convention ... The bar on forcible return serves as a minimum standard and needs to remain in place until such time as the security, rule of law and human rights situation in South Sudan have improved sufficiently to permit a safe and dignified return of those determined not to be in need of international protection.

36    However, the assessments reported that, while there were places in South Sudan to which it would not be feasible for the applicant to return, those considerations did not apply in the applicant’s case (having regard to his ethnic and religious origins) in respect of the capital Juba and, further, that the applicant’s brother lived in Juba. Accordingly, the first assessment was to the effect that Australia does not have a non-refoulement obligation in respect of the applicant. Subject to a qualification concerning the applicant’s brother, this assessment was confirmed in the second assessment, despite the further information provided by the applicant and the further information obtained by the assessor itself.

37    Counsel for the applicant submitted that the Minister had failed to consider that the effect of his decision would be that, if deported, the applicant would be sent to South Sudan being a country which did not exist at the time that he was found to be a refugee and in which he has no ties by way of previous residence, education, employment or family connections. Counsel also submitted that the Minister had no information as to whether South Sudan would accept the applicant and, accordingly, that the Minister had failed to consider the real possibility that the applicant will not be able to be sent to South Sudan and accordingly may remain in immigration detention indefinitely.

38    The difficulty for the applicant with this submission is that the Minister did refer expressly to the two assessments of Onshore Protection Victoria. Further, the Minister summarised, in [29] of his reasons, the submissions put to him on the applicant’s behalf relating to the possible return to South Sudan. The Minister noted that the applicant’s representative disputed the assessments of Onshore Protection Victoria but said, nevertheless, that he accepted them and that Australia did not owe the applicant non-refoulement obligations. Specifically, the Minister found that it was reasonable for the applicant to relocate to the capital, Juba. The Minister found expressly that the applicant would be “relocating to a country he has never lived in, after a lengthy absence from the region” and that his removal to South Sudan was likely to cause him to experience significant hardship.

39    Ultimately, the submissions on this aspect of the application seem to invite the Court to make its own assessment of whether the applicant could be returned to South Sudan and whether the material before the Minister warranted his conclusion in that respect. That is not an appropriate basis for judicial review. Each of the two assessments reported that the applicant did not face a real chance of being persecuted for a Convention reason and that the applicant’s fear of persecution was not well-founded. Each reported that Australia does not have non-refoulement obligations in respect of the applicant. The Minister referred expressly to the two assessments. He accepted them. In these circumstances, the submission that the Minister failed to have regard to a relevant consideration of the kind alleged cannot be upheld.

Ground 2: Unreasonableness

40    Counsel for the applicant acknowledged that many of his submissions on this ground were a repetition of the matters on which he had relied in relation to Ground 1, although framed by reference to the notion of unreasonableness discussed by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332. In that case, the majority held that Parliament should be taken to have intended that the Migration Review Tribunal exercise its discretionary powers reasonably. Hayne, Kiefel and Bell JJ said:

[65]    In Sharp v Wakefield, it was said that when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by "according to law". It is to be legal and regular, not arbitrary, vague and fanciful. The discretion must be "exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself". ...

[66]    This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. ...

(Citations omitted)

41    In his separate judgment, Gageler J said:

[90]    Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty. Each is a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject-matter, scope and purposes of the statute.

(Citations omitted)

42    The concept of legal unreasonableness discussed in Li was elaborated by the Full Court of this Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280. At [44] the Full Court said:

In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the court’s supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process ... However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li 297 ALR 225; [2013] HCA 18 at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. ...

(Citations omitted)

43    The applicant’s first submission in relation to this ground was that the Minister had given disproportionate weight to the protection of the community in the absence of a proper assessment of the likelihood of him re-offending. This submission cannot be sustained, as I have not accepted the applicant’s submission that the Minister’s reasons did not include an assessment of the prospect of him re-offending. In the light of the matters to which the Minister referred, including in particular the applicant’s extensive criminal record, the Minister’s conclusion in this respect cannot be described as unreasonable.

44    Next, counsel for the applicant submitted that the Minister had given insufficient weight to the issue of whether it was practical for the applicant to be returned to South Sudan and, if so, the difficulties he would experience there given that he had not lived in South Sudan previously and had limited “support mechanisms” available to him there. Counsel also submitted that the Minister had given insufficient weight to the possibility that the applicant may remain in immigration detention for an indefinite period if it was not possible for him to be returned to South Sudan.

45    This submission seemed to comprise an invitation to this Court to engage in its own evaluation of the evidence rather than considering whether the Minister’s decision was unreasonable in the legal sense. It also overlooks the observation of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 41 to the effect that “in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the Court to determine the appropriate weight to be given to matters which are required to be taken into account in exercising the statutory power”. That observation applies with as much force to the weight to be attached by a decision-maker to matters which are relevant to, but not a mandatory consideration in, the decision-making process.

46    In any event, on my assessment, the report of Onshore Protection Victoria which the Minister accepted did set out a rational basis for the conclusion that the applicant could be returned to Juba in South Sudan. In that circumstance, it does not avail the applicant presently to point to particular matters to which it is said that the Minister gave “insufficient weight”.

47    Finally, counsel contended that the Minister had failed to take into account the potential beneficial effects of the applicant being under supervision on parole for a period of about 12 months. Again, the Minister’s reasons belie the submission. The Minister referred expressly to the applicant’s stated willingness to undertake any programs required of him as a condition of his parole and of his study intentions upon release from prison. It cannot be said in these circumstances that the Minister failed to consider this matter in a way which made his decision legally unreasonable.

Conclusion

48    For these reasons, I consider that the applicant has not made out any of the grounds of the application for judicial review. Accordingly, the application must be dismissed.

Associate:

Dated:    6 July 2015