FEDERAL COURT OF AUSTRALIA

Mrayhej v Minister for Immigration and Border Protection (No 2) [2015] FCA 691

THE COURT ORDERS THAT:

1.    The Application be dismissed.

2.    The applicant pay the respondent’s costs of and incidental to the Application.

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

REASONS FOR JUDGMENT

1    The applicant, Monkez Mrayhej, is a citizen of Iraq. He is 38 years of age. He first arrived in Australia on 3 February 2003 as the holder of a Class XB Subclass 200 Refugee visa. Subsequently, on 15 September 2009, he was granted a Class BB Subclass 155 (Five Year Resident Return) visa (the applicant’s visa).

2    In the period between late September 2009 and late August 2013, the applicant left Australia on a number of occasions but always returned. He was absent from Australia for an extended period between 28 September 2009 and 11 October 2012.

3    On 28 November 2013, the respondent (Minister) cancelled the applicant’s visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (the Act). The Minister made that decision personally. The Minister’s decision to cancel the applicant’s visa was notified to the applicant by letter dated 5 December 2013 sent by Express Post to the applicant’s authorised representative as well as to the applicant’s last known address. Included within the materials sent to the applicant and his representative was a Statement of Reasons dated 24 November 2013 in which the Minister set out in brief terms his reasons for cancelling the applicant’s visa. The Minister also sent under cover of his notification letter to each of the recipients of that letter a copy of the Issues Paper and Attachments to which he had regard when making his decision to cancel the applicant’s visa.

4    On 30 December 2013, the applicant commenced this proceeding. He claims relief by way of judicial review of the Minister’s decision. This Court has original jurisdiction pursuant to s 476A(1)(c) of the Act to determine the applicant’s claims.

5    At the time of the hearing before me, the applicant held a bridging visa which had been granted to him by reason only of the circumstance that, at that time, he was imprisoned in a correctional facility in New South Wales. Very recently, he has been released from prison and is now in immigration detention. For this reason, the applicant no longer holds any valid visa.

The Relevant Facts

6    In January 2004 and again in June the same year, the applicant was charged with unauthorised dealing with shop goods. On the first occasion, no conviction was entered against him although the offence was found to have been proven. On the second occasion, he was convicted and fined $250.

7    On 31 January 2005, he was convicted in the District Court of Queensland at Brisbane of unlawful wounding. The applicant had “glassed” a fellow patron at a hotel. On this occasion, he was sentenced to nine months’ imprisonment with his sentence to be served by way of an intensive correction order. The relevant offence was committed in February 2003.

8    On 18 December 2006, he was convicted of unlawful wounding and stealing. For these offences, he was sentenced to 40 hours community service to be served cumulatively. He was also convicted of breaching the intensive correction order previously made against him on 31 January 2005 although no action was taken against him for this offence.

9    On 5 December 2007, the applicant was convicted in the District Court of Queensland at Beenleigh of 10 counts of indecent treatment of children under the age of 16. These offences related to two children who were aged 7 years and 9 years respectively at the time when the applicant assaulted them. The applicant was sentenced to serve 18 months imprisonment on each count concurrently. The remarks made by the sentencing judge at the time of the applicant’s conviction and sentence for these charges were briefed to the Minister as part of the bundle of materials provided to him for the purpose of assisting him to make his decision as to whether or not the applicant’s visa should be cancelled.

10    It is not necessary at the moment to describe the applicant’s conduct which constituted the offences of which he was convicted on 5 December 2007. It is enough for present purposes to observe that the offences were serious and involved very young children.

11    The sentencing judge ordered that the sentence in each case be suspended upon the applicant having served six months’ full-time imprisonment. The judge went on to say that there would be an operational period of three years. He informed the applicant that, if he committed any offence punishable by imprisonment in the three year period following his sentence, he would be brought back to Court and called upon to show cause why he should not serve the whole or some part of the outstanding 12 months of the sentence once he had completed the six months which he was obliged to serve as part of the sentence which the judge imposed. The sentencing judge said that, although all sexual offences against children are serious, the offences in question were towards the bottom end of seriousness in respect of sexual offending. He went on to say that nonetheless there were however serious aspects to the offences.

12    On 11 December 2008, the applicant was convicted of the offence of breaching his bail condition and of failing to report as required. For these offences, he was convicted and fined.

13    In 2014, he was arrested and sent to prison to serve the balance of his 2007 sentence (12 months). He was released, having served that sentence, in early June 2015.

14    It was the sentence imposed by the District Court of Queensland on 5 December 2007 that led the Minister to consider whether he should cancel the applicant’s visa.

The Minister’s Reasons

15    The Minister’s Reasons are found in his Statement of Reasons dated 24 November 2013. A draft of that Statement of Reasons was provided to the Minister at the same time as an Issues Paper with attachments.

16    At [1] of his Reasons, the Minister noted that, on 5 December 2007, the applicant had been convicted in the District Court of Queensland of 10 counts of indecent treatment of children under the age of 16 for which he was sentenced to imprisonment for 18 months on each count. At [2], the Minister recorded that, as a result of the imposition of these sentences of imprisonment, the applicant had a substantial criminal record within the meaning of s 501(7)(c) of the Act. For that reason, the Minister concluded that the applicant did not pass the character test referred to in s 501(1) and s 501(2) of the Act (as to which see s 501(6)(a) of the Act). Subject to one legal argument to which I shall refer later in these Reasons, the applicant accepts that he did not pass the character test at the time when the Minister cancelled his visa.

17    At [3] of his Reasons, the Minister said:

Having found that [the applicant] does not pass the character test and assessed the information set out in the Issues Paper and attachments, I considered whether to exercise my discretion to cancel [the applicant’s] visa. Whilst I have noted that Ministerial Direction No. 55 – Visa refusal and cancellation under s501 (“the Direction”) does not apply when I exercise the s501 powers personally because the Direction does not bind me as the Minister, I was mindful of the government’s commitment to using s501 of the Act to protect the Australian community from harm that may result from criminal activity or other serious conduct by non-citizens.

18    This is the first mention in the Minister’s Reasons of the Government’s aim of protecting the Australian community from harm that may result from criminal activity or other serious conduct by non-citizens. It is not the last mention of that aim. Protection of the Australian community against harm is a recurring theme throughout the Minister’s Reasons (see [4]–[12], [30] and [32]–[33]). There can be no doubt whatsoever that the Minister took into account and weighed in the balance the risk of harm to the Australian community posed by the applicant when he was considering whether or not to cancel the applicant’s visa pursuant to s 501(2) of the Act. The Minister also recorded (at [3] of his Reasons) that he had assessed the information set out in the Issues Paper and the attachments thereto.

19    The Minister then considered various matters which he regarded as relevant to the proper exercise of the discretion which he had identified. When doing so, the Minister addressed those matters by reference to the substance of the requirements of Ministerial Direction No 55 dated 25 July 2012 (Direction No 55). Direction No 55 is a direction made by the Minister under s 499 of the Act. That Direction binds delegates of the Minister but not the Minister himself. It is not a legal error let alone jurisdictional error for the Minister to take into account his own guidelines when exercising his discretion under s 501(2) of the Act.

20    The Minister dealt with the relevant factors under various headings.

21    The first heading is “Protection of Australian Community”. Under that heading, he considered:

    The seriousness and nature of the conduct; and

    The risk that the conduct might be repeated.

22    He then remarked upon the applicant’s ties to Australia.

23    He then considered relevant international obligations under the following subheadings:

    Best Interests of the Child; and

    Non-refoulement Obligations.

24    Finally, the Minister addressed a number of other considerations under a separate heading “Other Considerations”.

25    At [4]–[12] of his Reasons, the Minister addressed the need to protect the Australian community under the two subheadings to which I have referred. The Minister said:

Protection of Australian Community

Seriousness and nature of conduct

4.    [The applicant] has been convicted of 10 counts of sexual offences against children. [The applicant] touched and kissed two young girls aged seven and nine in a sexual manner. He pulled down the underwear of one of the girls and was stopped from further offending by the arrival of a motor vehicle. I consider these offences to be repugnant to the Australian community and offend the values of Australian society. ·

5.    [The applicant] was sentenced to imprisonment for 18 months on each offence. These substantial sentences are a further indication of the seriousness of his offending.

6.    [The applicant] also has two convictions for wounding and similar acts. These offences involve violence and I regard them as very serious. [The applicant] received a sentence of nine months imprisonment to be served by way of an intensive corrections order for one of these offences, a further indication of the seriousness of his offending on that occasion.

7.    [The applicant’s] first offence occurred 11 days after his arrival in Australia in February 2003 and was violent in nature. The sexual offences were committed in May 2003, also a short time after his arrival.

8.    [The applicant] has continued to assert that he did not commit the sexual offences to which he pleaded guilty and states he did so only because he was going through a difficult time and being treated harshly.

Risk that the conduct may be repeated

9.    Should [the applicant] re-offend with crimes of violence or child sex offences, I find that the harm to the community would be significant. Such crimes can cause long term psychological, as well as physical, harm, to the victims and can also impact on their families.

10.    I have noted that [the applicant] blames the influence of his older brother for some of his offending.

11.    In relation to the risk of re-offending, [the applicant] has a number of breaches of judicial orders recorded in Australia which I consider display a level of disregard for judicial authority.

12.    I have noted [the applicant’s] advice that he will not re-offend and the support he has from his mother and friends and associates in Australia. However, given his criminal history in Australia and his past breaches of judicial orders, I am not satisfied that he will not reoffend. Given his absences from Australia in recent years, I find that his rehabilitation has not been tested in the community for any significant length of time.

26    At [13]–[14], the Minister noted some matters relevant to the applicant’s connection with Australia. In particular, he noted that the child sex offences of which the applicant was ultimately convicted were committed very soon after his arrival in Australia in 2003. The Minister also noted that the applicant’s three children, his mother and one of his brothers all live in Australia. The Minister accepted that the applicant had made some contribution to the Australian community through employment and had social and family ties to Australia.

27    At [15]–[18] of his Reasons, the Minister said:

International Obligations

Best Interests of the Child

15.    I gave primary consideration to the best interests of any children in Australia under 18 years of age whose best interests can be significantly affected by cancellation of [the applicant’s] visa.

16.    [The applicant] has three Australian citizen minor children, [name suppressed] aged nine, [name suppressed] aged six, and [name suppressed], aged four. [The applicant’s] children departed Australia in 2009 and remained overseas until 26 August 2013. They are now living in Australia and [the applicant] is their sole carer.

17.    [The applicant] has advised that he supported his children financially while they were overseas and had custody of them following separation from his wife, their mother. He has advised that he was in frequent contact with them.

18.    Whilst [the applicant’s] history of sexual offences against children weighs against his suitability to be the primary care giver for his children, he has assumed this role and I note that in the circumstances, neither cancellation nor non-cancellation of his visa will serve to protect the children from any potential abuse.

28    At [20]–[23], the Minister addressed Australia’s non-refoulement obligations. He noted that the applicant had returned to Iraq on two occasions in recent years without being harmed. He also noted a recent International Treaties Obligations Assessment (ITOA) in respect of the applicant which found that his removal to Iraq would not breach Australia’s international treaty obligations.

29    Under the heading “Other Considerations”, the Minister observed that the cancellation of the applicant’s visa would not impact significantly on his former wife who was, in late 2013, living overseas.

30    At [25] of his Reasons, the Minister alluded to the impact that the cancellation of the applicant’s visa would have upon his mother. The Minister said:

[The applicant’s] mother, [name suppressed], is also an Australian citizen. She has a number of serious health problems and requires a full time carer. [The applicant] is currently fulfilling this role. Although [the applicant’s mother] has another son who lives in Australia, I find that cancellation of [the applicant’s] visa will impact significantly on his mother, both emotionally and in practical terms given her daily care needs.

31    The Minister went on to find that the cancellation of the applicant’s visa would have some impact on his older brother because that brother would have to step in and replace the applicant in his role as carer for his mother.

32    In addition, the Minister concluded that the applicant would not face language or cultural barriers in establishing himself in Iraq. He noted that the applicant has a brother and sister living there.

33    Under the heading “CONCLUSION”, at [29]–[33], the Minister said:

29.    I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act 1958, (2) all other evidence available to me, including evidence provided by, or on behalf of [the applicant].

30.    I have given substantial weight to the very serious nature of [the applicant’s] offending, which included sexual offences against two vulnerable young victims and crimes of violence. His rehabilitation has not been tested in the community for any significant length of time and there remains an unacceptable risk that he may re-offend. I have considered the principle that a non-citizen who commits a serious crime should forfeit the privilege of staying in Australia, and I find that this principle applies in this case.

31.    [The applicant] has three minor children who are Australian citizens, and for whom he is the sole carer, and I have taken their interests into account. I find that it is in their best interests that he remain in Australia. I have also taken into account the impact of visa cancellation on his mother, for whom he provides daily care, and his brother in Australia. I have also given weight to his other links with Australia, including some employment and social links in this country.

32.    [The applicant] arrived in Australia as an adult and was in the community for a very short period of time before committing violent and sexual offences. In my view the risk of harm to the Australian community should [the applicant] re-offend with further sexual or violent offences is unacceptable and outweighs the countervailing considerations relevant in his case.

33.    Having given full consideration to all of these matters, I decided to exercise my discretion to cancel [the applicant’s] Class BB, Subclass 155 (Five year Resident Return) visa under s501(2).

34    The ITOA referred to by the Minister at [22]–[23] of his Reasons was provided to him as part of the materials furnished to him for the purpose of assisting him to decide whether or not he should cancel the applicant’s visa. The Minister had also been provided with the remarks on sentence made by the sentencing judge when sentencing the applicant on 5 December 2007 as well as other materials concerning the applicant’s criminal history. There was evidence before the Minister which established all of the matters to which I have referred at [6]–[13] above.

35    In addition, the Minister was briefed with all of the correspondence and other communications passing between the relevant department, on the one hand, and the applicant and his advisers and representatives, on the other hand, most of which was created in late 2012, after the applicant had been informed that the Minister was going to consider whether to cancel his visa.

The Applicant’s Grounds of Review

36    In his Amended Originating Application for Review of a Migration Decision filed on 4 June 2014, the applicant relied upon the following grounds:

1.    The respondent’s exercise of his discretion miscarried.

Particulars

a.    having found that the applicant’s children are Australian citizens and Australia offers a more secure environment for the children than Iraq and that it is in their best interest that the applicant’s visa not be cancelled, such findings should have outweighed other consideration [sic].

b.    Having found that the applicant’s mother is cared for by the applicant and that it is in her best interest that the visa not be cancelled, such findings should have outweighed other considerations.

c.    The respondent had no evidence to determine that the applicant’s criminal conduct may be repeated especially since the respondent has found that the applicant’s rehabilitation has not been tested in the community for any significant length of time.

2.    The respondent has Inflexibility [sic] applied the government’s principle that a non-citizen who commits a serious crime should forfeit the privilege of staying in Australia.

3.    The Respondent’s decision was affected by jurisdictional or legal error in that it was a pre-condition to the exercise of jurisdiction by the Respondent that the Applicant has a substantial criminal record as defined by section 501(7) of The Migration Act 1958 and the Applicant did not have such a record.

4.    The Respondent took into account an irrelevant consideration being an assessment that the Applicant had two convictions for violent offences of wounding and similar acts.

5.    Further or in the alternative to 4, there was no evidence that the Applicant had been convicted and sentenced for 2 violent offences of wounding and similar acts.

6.    The Respondent failed to have regard to the welfare of the children of the Applicant.

Particulars

a)    It was noted that the children were Australian citizens.

b)    It was noted that there was no other parental figure who could take on their care in Australia if the Applicant was deported.

c)    Other than to note that it was in the best interests of the children for the Applicant’s visa not to be cancelled, no consideration was given to what the future would hold for the children if they were forced to leave Australia and live in Iraq.

d)    The Respondent having found that the children may suffer significant hardship if they were forced to live in Iraq failed to give this factor any weight other than to describe it as a countervailing consideration.

37    The applicant claims a declaration that the Minister’s discretion miscarried when he decided to cancel the applicant’s visa. He seeks an order of certiorari quashing or setting aside that decision. He also seeks a writ of mandamus directing the Minister to exercise his discretion according to law and an injunction restraining the Minister from acting upon his decision. The applicant also claims costs.

38    When the applicant’s Amended Originating Application was filed, he was represented by a lawyer. The grounds of review set out in that document were, I infer, drafted and settled by the applicant’s lawyer.

Consideration

The Relevant Legislative Provisions

39    As at the date the Minister made his decision to cancel the applicant’s visa, subss (1) to (5), (6)(a) and (7) of s 501 of the Act were in the following terms:

501    Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

(1)    The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note:    Character test is defined by subsection (6).

(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.

Decision of Minister—natural justice does not apply

(3)    The Minister may:

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

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

if:

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

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

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

(5)    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).

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

…

Otherwise, the person passes the character test.

Substantial criminal record

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

(a)    the person has been sentenced to death; or

(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, where the total of those terms is 12 months 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; or

…

40    The term “imprisonment” when used in s 501(7) includes any form of punitive detention in a facility or institution (s 501(12)). The expression “sentence” when used in s 501(7) includes any form of determination of punishment for an offence (s 501(12)).

Engagement of s 501

41    The Minister relied upon s 501(6)(a) and s 501(7)(c) as the basis upon which the applicant did not pass the character test referred to in s 501(1).

42    As I have already mentioned, on 5 December 2007, the applicant was sentenced to 10 terms of imprisonment of 18 months each, such terms of imprisonment to be served in the manner to which I have referred at [9] and [11] above.

43    The fact that part of each of those sentences was suspended did not lessen those sentences for the purposes of s 501(7)(c) of the Act. The term of imprisonment of 18 months was the relevant sentence in the case of each count of which the applicant was convicted. In this regard, see Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113 (Brown) at 116–117 [9], where Rares J, with whom Moore J agreed, said:

The construction of the expression “sentenced to a term of imprisonment” in s 501(7) cannot depend on the vaguery or intricacies of different sentencing regimes in many jurisdictions. It may be that some particular legislation introduces the unusual concept that a suspended sentence to term of imprisonment is to be treated differently to the ordinary and natural meaning of that expression. In such a case an argument may be open that such a sentence does not fall with s 501(7)(c) or (d). However, that situation need not be considered here. The ordinary and natural meaning of the expression used in s 501(7) describes the penalty imposed as distinct from the time, if any, required to be served in prison. The step of suspending a sentence of imprisonment actually imposed occurs after, and is distinct from, the initial imposition. Thus, s 501(7)(c) looks to the initial imposition of a sentence and is not concerned with the subsequent way in which that sentence is enforced.

44    At 139–141 [94]–[111] and at 142 [113]–[114], Nicholas J also explained why a suspended sentence of imprisonment is, for the purposes of the Act, a sentence to a term of imprisonment.

45    I am bound to apply the reasoning in Brown. In any event, I agree with it.

46    For these reasons, I have no doubt that the Minister was correct when he concluded that the applicant had a “substantial criminal record” within the meaning of s 501(7) of the Act because, on 5 December 2007, the applicant had been sentenced to ten terms of imprisonment of 12 months or more all of which were to be served concurrently.

47    These conclusions are sufficient to dispose of Grounds 3 and 5 specified in the applicant’s Amended Originating Application.

48    Once s 501(7)(c) was engaged, s 501(6)(a) was also engaged with the consequence that the discretion reposed in the Minister under s 501(2) of the Act was enlivened.

Discretion

Grounds 1, 2 and 6

49    Grounds 1, 2 and 6 all raise matters which are quintessentially the province of the decision-maker. Where (as here) the statutory scheme does not spell out in express terms the considerations which must be taken into account by the decision-maker or the weight that is to be accorded to each such consideration, it is generally for the decision-maker in each case to decide which matters should be considered and what weight should be given to each of them. The failure to give any weight at all to a factor to which a decision-maker is bound to have regard in circumstances where that factor is of great importance in the particular case may support an inference that the decision-maker did not have regard to that factor at all (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39–41 per Mason J esp at 41; and Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 at 270–271 [58]–[60] per Stone, Foster and Nicholas JJ).

50    At the hearing before me, the applicant relied upon a handwritten document which was included within the bundle of documents marked as MFI-2 at the hearing. In that document, the applicant described its contents as his “life’s story”. That document contains a good deal of evidentiary material which was not admitted in evidence before me. More importantly, it is a document that seems to have been prepared on or about 12 March 2015, long after the Minister made his decision to cancel the applicant’s visa. In his handwritten document, the applicant said:

I have reflected on my crime and I regret my actions in the past and I believe that I have been rehabilitated. I have also recognised Australian values. In prison, I have tried to [enrol in] sex offenders programs to better myself and was informed by the management that I could do these programs after my release into the community. In conclusion, I believe that I have made a mistake for which I deservedly have been punished. From this point forward I wish to become a productive member of the society. Thus I seek mercy, one final chance to prove my integrity.

51    I propose to treat the material in the applicant’s handwritten document as a submission only.

52    At the hearing, the applicant also made oral submissions. He said that his life in Iraq was in danger. He said that his mother needed his help. He said that his three children who are Australian citizens and live here needed his help. He said that he wanted the Court to review his case and give him another chance to prove that he will be a good person.

53    As far as the matters raised under Ground 1 are concerned, the Minister specifically alluded to the needs of the applicant’s mother and of his children in his Statement of Reasons. The Minister acknowledged that, at the time of his decision, the applicant was fulfilling the role of full-time carer both for his mother and his children. The Minister recognised that, if the applicant’s visa were cancelled, cancellation would significantly impact negatively on his mother, both emotionally and in practical terms, given her daily care needs. The Minister took the view that neither cancellation nor non-cancellation of the applicant’s visa would protect his children from any potential abuse. The Minister recognised that the applicant was the children’s sole carer at the time of his decision.

54    The Minister was entitled to give effect to his own opinion as to whether or not it was likely that the applicant would reoffend in the future. The Minister said that he was not satisfied that the applicant would not reoffend. The Minister was entitled to form the view (as he did) that the risk of harm to the Australian community should the applicant reoffend with further sexual or violent offences was unacceptable and outweighed the countervailing considerations relevant in his case. The applicant produced no psychological or psychiatric evidence to address the question of whether he was likely to re-offend. Nor was there any evidence of remorse placed before the Minister.

55    The applicant failed to make out Ground 1.

56    As far as Ground 2 is concerned, the Minister was entitled to give significant weight to the protection of the Australian community from harm that may result from criminal activity or other serious conduct by non-citizens. As submitted on behalf of the Minister at the hearing before me, the applicant had been guilty of serious sexual offences against young children, as well as earlier violence. The Minister’s consideration of these factors was an important part of his overall assessment of all of the evidence. The Minister took the view that the sex offences were “very serious”. The Minister was not bound to regard those offences as at the bottom end of the scale of sexual offences merely because the sentencing judge had described them in that way. I reject Ground 2.

57    The applicant also failed to make good Ground 6. The Minister accepted that the applicant’s children were Australian citizens, referred to their age and also referred to the applicant’s status as the sole carer. However, the Minister also noted that the applicant’s sister and her husband had cared for his children while they were in Iraq and found that the applicant would not be without family support in Iraq. The Minister specifically found it to be in the applicant’s children’s best interests that the applicant remain in Australia, referring to them as minor children who are Australian citizens for whom the applicant is the sole carer. The welfare of the children was accordingly taken into account and, as submitted on behalf of the Minister, no legal error lies in the fact that other considerations, particularly the protection of the Australian community, outweighed the Minister’s assessment of the best interests of the children in this particular case. The Minister did not find that the children may suffer significant hardship if they were forced to live in Iraq. An assertion to that effect was deleted from the draft of the Minister’s Reasons when he crossed out proposed par 19 of those Reasons.

Grounds 4 and 5

58    At [6]–[13] above, I have set out the applicant’s criminal history. That history, as summarised by me, was amply supported by materials in the attachments to the Issues Paper briefed to the Minister. Both the Issues Paper itself and all of the attachments briefed to the Minister were in evidence before me.

59    Clearly, the Minister had evidence before him of all of the offences of which the applicant had been convicted over the years. The Minister gave significant weight to the convictions for indecent treatment of children but was undoubtedly entitled to take into account the other serious offences committed by the applicant, including the offences of wounding. Those offences were serious and, although not, of themselves, sufficient to engage s 501(7) of the Act, were nonetheless relevant considerations for the Minister to take into account in considering whether or not to cancel the applicant’s visa.

60    I reject Grounds 4 and 5.

Some Other Matters

61    The Minister’s legal representatives drew my attention to the fact that a controversy has recently developed within the Court in relation to two matters said to be relevant to the proper exercise by the Minister of the discretion reposed in him by s 501(2) of the Act. The Minister referred me to several authorities in which these matters were discussed. However, no specific submission was made by the Minister as to the significance (if any) of these authorities to the present case.

62    In Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at 443–444 [88]; at 450 [123]–[125] and at 456 [154], Mortimer J held that the risk of harm to the Australian community posed by the subject of the particular visa refusal or cancellation is a matter which the relevant decision-maker, including the Minister personally, must take into account in exercising the s 501(2) power. Her Honour said that the reason that this is so 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, the protection of the Australian community, using “protection” in its broadest sense.

63    In Moana v Minister for Immigration and Border Protection [2015] FCAFC 54, Rangiah J (with whom North J agreed) agreed with Mortimer J that the risk to the Australian community posed by the continued presence of the visa holder is a consideration that the Minister is bound to take into account in the exercise of the discretion to cancel that person’s visa under s 501(2) (see, in particular, [48] and [66] and the reasoning at [49]–[65] of his Honour’s Reasons), although their Honours reached that conclusion for reasons which in part differed from those given by Mortimer J in Tanielu. Justice Jessup did not agree with Mortimer J’s conclusion. At [3]–[10] of his Reasons in Moana, his Honour explained why.

64    In Roesner v Minister for Immigration and Border Protection [2015] FCA 68, Tracey J distinguished Tanielu on the facts. At [20]–[21], his Honour said:

20    In the present case the Minister had limited material before him to inform his assessment of the likelihood of the applicant reoffending. This was not a case where, for example, the applicant had a history of recidivism, had failed to heed warnings or had refused to participate in rehabilitation programmes: cf Moana v Minister for Immigration and Border Protection [2014] FCA 1084 at [18] (Davies J). Nor did the Minister have available to him any recent professional assessments of the applicant’s mental condition. Despite the paucity of the material before him the Minister did not fall into the same error as his predecessor had done in Tanielu. He did undertake an evaluation of the likelihood of the applicant again committing a serious criminal offence. So much is evident from the passages of his reasons at [17], [33] and [34] (quoted above at [13] and [14]). In substance the Minister reasoned that, although the risk of the applicant reoffending was low, even such a low risk was unacceptable given the magnitude of the harm which would be occasioned by any repetition of the applicant’s violent conduct. He was not obliged to attempt a more precise quantification of the risk: cf Coderre v Minister for Immigration and Border Protection [2014] FCA 769 at [36] (Besanko J).

21    It follows that, even if the Minister was bound to make an assessment of the risk of the applicant reoffending, he had done so. I say “even if” because there is on-going debate as to whether, in exercising his discretion under s 501 of the Act, the Minister is bound to have regard to such a consideration in all cases. There is a good deal of authority that contemplates that it is open to the Minister to take the view, in the public interest, that some criminal offences are so serious that cancellation of the offender’s visa will be justified without more: see Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 419 (Gaudron J); Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 409; Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 at 352; Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at 523. It cannot be doubted that the murder of a victim of domestic violence falls amongst the most serious offences known to the criminal law.

65    Justice Tracey did not endorse the reasoning in Tanielu. He expressly refrained from doing so because he held that “even if” the Minister was bound to make an assessment of the risk of the applicant re-offending, he had done so (at [21]).

66    In Te Puke v Minister for Immigration and Border Protection [2015] FCA 398, Wigney J endorsed the reasoning of Mortimer J in Tanielu as to the necessity to consider the risk of harm to the Australian community but distinguished Tanielu on the facts. Justice Wigney held that the Minister had given appropriate consideration to the risk of harm. His Honour cautioned against making too much of looseness of language or unhappy phrasing in the Minister’s Statement of Reasons. The Minister’s Reasons must be considered as a whole and in a practical and realistic manner.

67    I should also mention two further decisions of the Full Court.

68    In Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 (Ayoub), at [31]–[41], the Full Court (Flick, Griffiths and Perry JJ) discussed Tanielu, Moana and several other cases under the heading “Consideration of the Risk of Harm”.

69    After referring to the judgment of Mortimer J in Tanielu and all of the judgments in Moana, at [35]–[37], the Full Court said:

35    The difference in the competing views is not easy to resolve.

36    In addition to the difference of views expressed by North and Rangiah JJ (on the one hand) and those of Jessup J (on the other), there remains an unresolved tension between the views of North and Rangiah JJ in Moana and observations of Kiefel and Bennett JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256, (2004) 139 FCR 505. Their Honours there relevantly commenced their analysis of s 501 as follows:

[72]    The Act does not state what factors the Minister is bound to consider in determining whether or not to cancel a person’s visa …

Their Honours then referred to some of the authorities and concluded:

[74]    A reference to those matters confirms the breadth of the Minister’s discretion. The object of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens: s 4(1). To advance that object provision is made for the removal or deportation from Australia of non-citizens whose presence is not permitted by the Act: s 4(4). If the Minister were able, consistent with the object of the Act, to consider a matter as broad as the national interest, in determining whether a person ought to be permitted to remain in Australia, it does not seem possible to imply some obligation on the Minister’s part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed. By way of illustration, the Minister may consider that the national interest requires that the commission of a particular type of offence will inevitably result in the cancellation of a visa, where there has been a sentence to imprisonment for the requisite term. To construe the section as requiring the Minister to consider factors such as the level of involvement of the visa holder in the offences would cut across that broad discretion. It follows in our view that the obligation of which his Honour the primary judge spoke cannot be read into s 501.

Justice Wilcox dissented.

37    Although it is unnecessary in the present proceeding to resolve these competing views, reservation may nevertheless be presently expressed with respect to the concern expressed by Mortimer J in Tanielu to incorporate the risk of harm to the Australian community as “an integral aspect of the exercise of the power in s 501(2)” to ensure that the power stays “within constitutional limits…”: [2014] FCA 673 at [123], (2014) 225 FCR at 450. Other constraints upon the exercise of the power conferred by s 501, separate from the need to incorporate the risk of harm, ensure that an exercise of power remains within lawful limits. Thus, for example, any exercise of the power could not be arbitrary or unreasonable. Nor could the power be exercised to impose punishment for a criminal offence: cf. Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 at [73], (2004) 139 FCR 292 at 311 per Tamberlin, Sackville and Stone JJ. Further reason to express reservation with respect to the need to incorporate a consideration as to the risk of harm to the Australian community when exercising the power conferred by ss 501(2) and 501(6)(a) is the absence of any express reference to the risk of harm in s 501(6)(a) but the reference to “danger to the Australian community” in s 501(6)(d)(v) of the Migration Act. It may be difficult to conclude that an exercise of the power to cancel a visa by reason of a person’s “substantial criminal record” within the meaning of s 501(6)(a) is necessarily subject to an implicit constraint where a comparable constraint is expressly provided for where the basis upon which the Minister proceeds is the “significant risk” referred to in s 501(6)(d).

70    The Full Court in Ayoub then mentioned Te Puke.

71    The Full Court ultimately held that it was unnecessary to resolve whether the ultimate conclusion reached by Mortimer J in Tanielu and by the majority in Moana is correct. However, the Court seemed to doubt the correctness of both judgments.

72    The second Full Court authority to which I should refer is Fraser v Minister for Immigration and Border Protection [2015] FCAFC 48. In that case, at [10], the Full Court (Kenny, Buchanan and Rangiah JJ) also found it unnecessary to express an opinion as to whether or not Mortimer J in Tanielu was correct.

73    In the present case, the applicant did not raise as a ground of review the contention that the Minister had failed to consider the protection of the Australian community and the risk of harm to the Australian community when exercising his s 501(2) discretion. Had such a contention been raised, I would have rejected it. I would have taken that course because, as a matter of fact, the Minister plainly did consider that matter when making his decision to cancel the applicant’s visa. For that reason, it would not have been necessary for me to consider whether he was bound to consider that matter as a matter of law.

74    In Tanielu at 446–447 [104], Mortimer J also held that the Minister is obliged to examine the likelihood of the visa holder’s engaging in future conduct which may cause harm to the Australian community because such an examination is an essential part of any assessment of the risk that that person posed to the community. Her Honour explained this requirement at 447–449 [105]–[117]; at 452 [133] and at 457 [158]–[159].

75    This second main holding by Mortimer J was disapproved by Rangiah J in Moana (at [74]). Justice North agreed with Rangiah J. Justice Rangiah explained why he disagreed with Mortimer J at [67]–[73] of his Reasons. Justice Jessup did not decide the point.

76    In the present case, the applicant has not raised any ground of review based upon the second broad principle articulated by Mortimer J in Tanielu. For that reason, it is not necessary for me to enter the debate and I refrain from doing so.

Conclusion

77    In my judgment, the applicant has failed to make out any of the grounds of judicial review of the Minister’s decision relied upon by him. For this reason, the Application will be dismissed with costs.

78    There will be orders accordingly.

Associate:

Dated:    8 July 2015