FEDERAL COURT OF AUSTRALIA

Tanioria v Minister for Immigration and Border Protection [2015] FCA 965

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

Introduction

1    Before me is an application for judicial review of the decision of the respondent (“the Minister”) dated 17 November 2014 (“the decision”) cancelling the applicant’s Class BF Transitional (Permanent) visa. The decision was made by the Minister personally under s 501(2) of the Migration Act 1958 (Cth) (“the Act”). The applicant seeks orders (inter alia) quashing the Minister’s decision.

Section 501

2    Section 501 of the Act relevantly provides:

Decision of Minister or delegate – natural justice applies

(1)    …

(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.

…

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

…

Substantial criminal record

(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

(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

…

Section 499

3    Section 499 of the Act relevantly provides:

Minister may give directions

(1)    The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a)    the performance of those functions; or

(b)    the exercise of those powers.

(1A)    For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.

(2)    Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

(2A)    A person or body must comply with a direction under subsection (1).

…

4    Direction No 55 entitled “Visa refusal and cancellation under s 501” dated 25 July 2012 (“Direction 55”) is a direction made pursuant to s 499 of the Act.

5    Direction 55 includes a preamble. Included in this preamble is para 6.3 entitled “Principles” which states:

(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 to 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 or 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, and 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 for 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-citizen’s visa should be cancelled, or their visa application refused.

6    Section 2 of Direction 55 entitled “Exercising the Discretion” includes para 8 which states:

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.

7    Pursuant to para 9(1) of Direction 55 the primary considerations to be considered by a decision-maker in deciding whether to cancel a person’s visa are:

(a)    Protection of the Australian community from criminal or other serious conduct;

(b)    The strength, duration and nature of the person’s ties to Australia;

(c)    The best interests of minor children in Australia; and

(d)    Whether Australia has international non-refoulement obligations to the person.

8    In relation to best interests of minor children, para 11.2 of Direction 55 further provides:

Best interests of minor children in Australia affected by the decision

(1)    Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child.

(2)    This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made.

(3)    If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

(4)    In considering the best interests of the child, the following factors must be considered where relevant:

a)    The nature and duration of the relationship between the child and the person. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

b)    The extent to which the person is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;

c)    The impact of the person’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;

d)    The likely effect that any separation from the person would have on the child, taking into account the child’s ability to maintain contact in other ways;

e)    Whether there are other persons who already fulfil a parental role in relation to the child;

f)    Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

g)    Evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

h)    Evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.

9    The applicant’s legal representative in this proceeding served a notice to admit facts in response to which the Minister admitted that he was provided with a submission prepared by the Department of Immigration and Border Protection (“the Department”) which included a draft statement of reasons. It was also admitted by the Minister that this submission (“the Departmental Submission”) was not provided to the applicant before the Minister made the decision to cancel the applicant’s visa, and that the applicant was not given the opportunity to review or comment upon it.

Factual Background

10    The applicant is a citizen of Fiji who came to Australia in 1982 in the company of his mother and father and older brother. He was 18 months old at that time and has lived in Australia ever since. He began a relationship with his former partner in early 2005. They have a daughter who was born in 2007. The applicant’s partner also has a son from a previous relationship. At the time of the decision the applicant’s daughter was 6 years of age, and his stepson was 13 years of age. The stepson has moderate to severe autism.

11    On 6 January 2014 the Department wrote to the applicant giving notice of intention to consider cancellation of the applicant’s visa. The letter includes a paragraph referring to Direction 55. The relevant paragraph states:

If the decision-maker is a delegate of the Minister, the delegate must follow Direction 55 – Visa Refusal and Cancellation under s501 (the Direction). The Direction is enclosed for your information. If the Minister makes a decision personally, he is not required to give consideration to the Direction, though it provides a broad indication of the types of issues that he may take into account.

12    Further on the letter refers to a series of enclosures. The letter states:

The following documents are also enclosed. The documents consist of information that is held by the department, which the decision-maker may rely on to decide whether you pass the character test; and if not whether your visa should be cancelled.

The enclosures included documents described as follows:

•    Warning about future conduct dated 9 June 2000 and acknowledgement dated 9 June 2000

•    Warning about future conduct (following prior decision not to cancel) dated 29 November 2006 and acknowledgement dated 2 December 2006

•    Warning about future conduct (following prior decision not to cancel) dated 28 August 2009 and acknowledgement dated 4 September 2009

•    Formal counselling letter dated 20 November 2012 and acknowledgement dated 24 November 2012.

13    The last of these documents is a letter sent to the applicant on 20 November 2012 which includes the following warning:

The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in consideration of the cancellation of your visa. The consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia, and in certain cases, bars on re-entering Australia.

(original emphasis)

The Minister’s Decision

14    The Minister’s statement of reasons refers to the applicant’s conviction on 9 August 2013 for recklessly inflicting grievous bodily harm for which the applicant was sentenced to 35 months imprisonment. On the basis of that sentence, the Minister was satisfied that the applicant did not pass the character test.

15    The applicant accepts that the condition that enlivened the Minister’s discretion under s 501(2) to cancel the applicant’s visa was fulfilled. The question raised by this application is whether the exercise of the Minister’s discretion was vitiated by reason of the Minister failing to afford the applicant procedural fairness, failing to take into account a consideration that the Minister was bound to take into account, or taking into account a consideration that the Minister was bound not to take into account.

16    The Minister’s reasons disclose that in deciding whether to exercise his discretion to cancel the applicant’s visa, he took into account the following matters:

    the seriousness of the assault which was the subject of the applicant’s 9 August 2013 conviction;

    other violent offences for which the applicant was previously convicted including physical assaults on his former partner which the sentencing court described as involving “shocking violence” resulting in “appalling injuries” for which he was sentenced to 20 months imprisonment.

    alcohol abuse by the applicant together with related anger management issues, and steps taken by the applicant in prison and after release on parole to address these problems;

    the risk that the applicant would re-offend;

    the applicant’s family connections in Australia including to his daughter, his stepson, their mother, his parents, siblings, and nieces and nephews;

    the applicant’s contribution to the community through employment and sporting activities;

    the best interests of the applicant’s daughter and his stepson;

    the emotional, practical and financial effects upon the applicant’s former partner if his visa was cancelled;

    the effects upon the applicant’s parents and nieces and nephews if his visa was cancelled; and

    the applicant’s ties to Fiji including his knowledge of the culture and language.

17    The Minister stated in his reasons that he gave considerable weight to the very serious nature of the applicant’s offending which involved multiple violent offences. He described the risk of the applicant re-offending as “unacceptable”.

18    With regard to the interest of the applicant’s daughter and stepson, the Minister found that it would be in their best interests if the applicant was permitted to remain in Australia.

19    The Minister stated at [25]-[31] of his reasons:

Best Interests of Minor Children

[25]    I gave primary consideration to the best interests of any children who are less than 18 years of age and whose best interests may be significantly affected by cancellation of Mr Tanioria’s visa.

[26]    Mr TANIORIA has a parental relationship with two minor Australian citizen children in Australia, his daughter […], aged six, and his stepson […], aged 13. It is claimed that Mr TANIORIA has been a figure in […] life since 2005 when […], who has moderate to severe autism, was then five years of age and would accompany his mother to visit Mr TANIORIA in prison.

[27]    Both children had frequent contact with Mr TANIORIA during his recent incarceration by telephone and correspondence and also visited him in prison. The available evidence indicates that Mr TANIORIA has actively participated in researching therapies for […] benefit and contributed to the children’s upkeep. Mr TANIORIA resided with the children for approximately three months following his release on parole on 26 March 2014. During this time he participated in their daily care and contributed to their upkeep. He currently has contact with them two times per week and actively participates in their lives. He also continues to provide them with financial support. The children will not be relocating to Fiji in the event of visa cancellation due to inadequate services in that country to address […] autism.

[28]    It has been submitted that should Mr TANIORIA’s visa be cancelled, his contact with the children will be very limited as he is not computer literate and will be unable to communicate with them electronically.

[29]    I have noted that a young child was present during Mr TANIORIA’s assault on [his former partner], however there is no evidence that Mr TANIORIA has been violent towards either child. [His former partner] has advised that the Department of Family and Community Services gave their approval for Mr TANIORIA to live with the children.

[30]    Given the factors above, and the children’s positive relationship with him, I find that it is in the best interests of […] and […] for Mr TANIORIA to remain in Australia.

[31]    Mr TANIORIA also has nieces and nephews in Australia, some of whom may be minors. There is no reason to believe that any minor relatives do not receive parental care from their parents. While I find that it is in the best interests of any minor relatives that Mr TANIORIA remain in Australia where he can continue to have a personal relationship with them, I find that any adverse effect on them as a result of visa cancellation would be minimal.

20    The Minister also stated at [37]-[40]:

Conclusion

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

[38]    I have given substantial weight to the very serious nature of Mr TANIORIA’s offending which involved multiple violence offences. I consider that he remains at risk of re-offending, and that this risk is unacceptable.

[39]    I have also considered the principle that a non-citizen who commits a serious crime should generally forfeit the privilege of staying in Australia and I find that this principle applies in this case.

[40]    Mr TANIORIA has a minor daughter and stepson in Australia who are Australian citizens. I find that it is in the best interests of his daughter and stepson that he remain in Australia. I have also taken into account his ties to Australia, including the presence of his partner and his immediate family in Australia, his lengthy residence in Australia from a young age, and his contribution to the community. I have taken into account the difficulties that Mr TANIORIA may face in Fiji, particularly given the absence of family support in that country and his long residence in Australia. While I also consider that it is in the best interests of any minor relatives that Mr TANIORIA remain in Australia, I gave this factor little weight.

The Grounds Relied Upon by the Applicant

21    The applicant has raised the following grounds in support of his application to quash the decision:

1.    The decision is void for the Minister failing to take into account relevant considerations being the nature and degree to which a decision to cancel the Applicant’s visa would not be in best interests of the Applicant’s children.

        Particulars

1)    Paragraph 9.3(3) of Direction 55 required the Respondent to assess the bests interests of each of the Applicant’s children for individual consideration of how their interests may differ

2)    Paragraph 8(4) of Direction 55 provides that a primary consideration, including the best interests of minor children, should be given greater weight than other considerations

3)    The Respondent did not carry out an individual assessment of the best interests of the Applicant’s children and how their interests would differ given, in particular, the emotional needs of the Applicant’s son as suffering from severe to moderate autism.

4)    The Respondent gave a finding that cancellation of the visa would not be in the best interests of the Applicant’s children little weight

5)    In the circumstances, the Respondent failed to take into account Direction 55 and/or the primary consideration that the bests interests of the children should be given greater weight than other considerations.

2.    The decision is void for procedural unfairness in that:

(b)    The Applicant was not warned that previous warnings from the Minister/Department, upon which no previous action was taken, could be used in making the decision and invited to comment upon the use that the Minister could make of those previous warnings;

(c)    The Applicant was not provided with a copy of the Submission to the Minister dated 10 October 2014 and provided an opportunity to comment or respond to it;

(d)    Further, or in the alternative to c, the Applicant was not provided with an opportunity to address concerns or potential findings by the Minister regarding:

(i)    A risk of re-offending;

(ii)    The risk that current rehabilitative efforts could fail;

(iii)    The chance that the Applicant could successfully resettle in Fiji due to visiting briefly at the age of 16.

3.    The decision is void for taking into account an irrelevant consideration, namely Principle (2) at Para [6.3] of Direction 55 dated 28 July 2012, because that Principle is inconsistent with the Migration Act 1958 (Cth) and ultra vires.

4.    The decision is void for failing to take into account a relevant consideration, being:

(a)    A proper appraisal of the real risk of future offending by the Applicant;

(b)    A proper appraisal of the finding of Judge Conlon of special circumstances warranting a longer period of supervision to enhance the Applicant’s prospects of rehabilitation;

(c)    That the Applicant was not legally aided or assisted in the preparation of his submission to the Minister.

22    I shall deal with each of these grounds in turn.

Ground 1

23    Ground 1 is predicated on the assumption that the Minister was bound to apply Direction 55 when exercising his discretion under s 501(2) of the Act. I do not accept that the Minister was bound by Direction 55. The applicant’s submission to the contrary cannot be sustained in light of the terms in which s 499 is expressed or the decision in Le v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 875 (Le) at [60] per French J (on appeal, [2005] FCAFC 51; (2005) 215 ALR 521 at [72]).

24    However, as French J explained in Le, a failure by the Minister to have regard to the best interests of the visa holder’s children may give rise to a failure to afford procedural fairness were the Minister not to take that matter into account as a primary consideration without informing the visa holder of that fact: Le at [69] citing Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (Teoh).

25    In Teoh Gaudron J, after referring to the Convention of the Rights of Child at 304-305, stated:

The significance of the Convention, in my view, is that it gives expression to a fundamental human right which is taken for granted by Australian society, in the sense that it is valued and respected here as in other civilised countries. And if there were any doubt whether that were so, ratification would tend to confirm the significance of the right within our society. Given that the Convention gives expression to an important right valued by the Australian community, it is reasonable to speak of an expectation that the Convention would be given effect. However, that may not be so in the case of a treaty or convention that is not in harmony with community values and expectations.

There is a want of procedural fairness if there is no opportunity to be heard on matters in issue. And there is no opportunity to be heard if the person concerned neither knows nor is in a position to anticipate what the issues are. That is also the case if it is assumed that a particular matter is not in issue and the assumption is reasonable in the circumstances. In my view and for the reasons already given, it is reasonable to assume that, in a case such as the present, the best interests of the children would be taken into account as a primary consideration and as a matter of course. That being so, procedural fairness required that, if the delegate were considering proceeding on some other basis, she should inform Mr Teoh in that regard and give him an opportunity to persuade her otherwise.

26    The Minister accepts that the applicant was not given notice that the Minister would not take the best interests of the applicant’s children into consideration when deciding whether or not to cancel the applicant’s visa. He also accepts (as recorded in the Minister’s written submissions in this Court) that “he was obliged to give the best interests of the applicant’s children primary consideration”. The Minister submits that he did this; the applicant submits that the Minister did not.

27    The applicant submitted that it is apparent from para [40] of the Minister’s reasons that the Minister gave the best interests of the applicant’s children “little weight”. This is said to be apparent from the Minister’s reference to “minor relatives” in the last sentence of para [40]. However, the Minister submitted that the factor to which the Minister refers in that sentence, and to which he gave little weight, was the best interests of the applicant’s nieces and nephews.

28    I do not accept the applicant’s submission. In my opinion the reference to “minor relatives” in para [40] of the Minister’s reasons is a reference to the applicant’s nieces and nephews. My reasons for reading para [40] in this way are as follows.

29    In para [25] the Minister states that he gave primary consideration to the best interests of any children who are less than 18 years of age and who might be significantly affected by cancellation of the applicant’s visa. This is followed by a discussion in para [26] of the two minor children with whom the applicant has a parental relationship. At para [30] the Minister refers to the children’s positive relationship with the applicant, and finds that it is in their best interests for the applicant to remain in Australia.

30    Para [31] of the Minister’s reasons reflects a consideration of the interests of the applicant’s “minor relatives”. He states that some of these “minor relatives” may be minors but there is no reason to believe that they do not receive parental care from their parents. It is clear that the Minister is referring here not to the applicant’s children, but to his nephews and nieces.

31    At para [40] the Minister returns to the topic of the interests of minor children. He again refers to the best interests of the applicant’s daughter and stepson. The Minister then refers to the best interests of any “minor relatives”. I think it is clear that it was the best interests of the nieces and nephews to which the Minister gave little weight on the basis that the applicant was not in a parental relationship with them.

32    In relation to the applicant’s stepson, the Minister’s reasons note that he has moderate to severe autism and that the mother and daughter would not be relocating to Fiji in the event the applicant’s visa was cancelled due to the inadequacy of services in that country to address the stepson’s condition. I am not satisfied that the circumstances of the applicant’s stepson were not considered by the Minister or that the applicant was denied procedural fairness in the sense that he was deprived of the opportunity to make submissions to the Minister in relation to that matter.

33    In Re Minister for Immigration and Multicultural Affairs; Ex parte Hieu Trung Lam (2003) 214 CLR 1 Gleeson CJ pointed to the need for an applicant to show that he or she has suffered some “practical injustice” in circumstances where a decision-maker departs from a statement of intention made in the course of the decision-making process. The Chief Justice said at [36]-[38]:

[36]    The more fundamental problem facing the applicant, however, relates to the matter of unfairness. A statement of intention, made in the course of decision-making, as to a procedural step to be taken, is said to give rise to an expectation of such a kind that the decision-maker, in fairness, must either take that step or give notice of a change in intention. Yet no attempt is made to show that the applicant held any subjective expectation in consequence of which he did, or omitted to do, anything. Nor is it shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment.

[37]    A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. Attorney-General (Hong Kong) v Ng Yuen Shiu [[1983] 2 AC 629] was such a case. So, according to the majority, was Haoucher v Minister for Immigration and Ethnic Affairs [(1990) 169 CLR 648]. A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

[38]    No practical injustice has been shown. The applicant lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention. It has not been shown that there was procedural unfairness. And, as I have already indicated, there is no warrant for a conclusion that there was a failure properly to take into account the interests of the applicant's children.

34    The applicant was informed that the Minister, if acting personally, was not required to give consideration to Direction 55 but that it provided a broad indication of the types of issues that may be taken into account. I do not think there is any reason to conclude that the Minister’s consideration of the matter did not conform with that advice. Nor do I think there is any basis for finding that there was any procedural unfairness arising out of any departure by the Minister from the terms of Direction 55.

Ground 2

35    The first point raised by the applicant under ground 2 was that the applicant was not given any warning that the previous warnings given to him could be taken into account by the Minister when deciding whether or not the applicant’s visa should be cancelled. It was said that, as a result of this, he was not given any opportunity to comment on the use that the Minister could make of such warnings and that he was thereby denied procedural fairness.

36    The Full Court recently summarised the principles relevant to this ground in Hala v Minister for Justice (2015) 145 ALD 552. The Full Court (Dowsett, Tracey and Katzmann JJ) said at [38]:

… Broadly speaking, procedural fairness entitles a person affected by a decision “to know the case sought to be made against him and to be given an opportunity of replying to it” (Kioa v West (1985) 159 CLR 550 at 582 per Mason J) … [P]rocedural fairness ordinarily requires the party affected by the decision to be given the opportunity to:

(a)    ascertain the relevant issues and be informed of the nature and content of the adverse material (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [32], approving Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (“Alphaone”) at 590–591);

(b)    deal with adverse information that is “credible, relevant and significant” to the decision to be made” (Kioa v West at 629 per Brennan J; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 (“VEAL”)); and

(c)    advise of any adverse conclusion the decision-maker has reached “which would not obviously be open on the known material” (Alphaone at 592).

37    Paragraph 9.1.1(i) of Direction 55 requires decision-makers to whom it applies to give consideration when considering the nature and seriousness of a person’s offending to “[w]hether the person has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the person’s migration status …”. This should have indicated to the applicant that the previous warnings were a matter to which the Minister might have regard. Moreover, the Department’s letter to the applicant of 6 January 2014 enclosed copies of the previous warning letters and informed the applicant that the decision-maker might rely on those documents in deciding whether or not to cancel the applicant’s visa.

38    Counsel for the applicant also submitted that the applicant should have been warned that the previous warnings might be taken into account in an unfavourable way. This is because, counsel submitted, the applicant had been warned about serious offending in the past, yet that offending was not, in counsel’s words, “considered sufficient enough to warrant cancellation of the visa”. Put another way, since previous assessments had favourable outcomes for the applicant, he was entitled to be informed that these favourable assessments might be used in an adverse manner.

39    I am satisfied that it would have been obvious to the applicant that evidence of previous warnings might be considered significant in deciding whether or not to cancel his visa. Each of the warning letters included a notice in bold to the effect that “[d]isregard of this warning will weigh heavily against you if your case is reconsidered”. The applicant signed an acknowledgment of receipt of each of these warnings.

40    The second point raised by the applicant under ground 2 concerned the Minister’s failure to provide the applicant with a copy of the Departmental Submission. Again, this was said to give rise to a denial of procedural fairness on the basis that it included material upon which the applicant should have been given an opportunity to comment including, in particular, in relation to the applicant’s previous criminal convictions.

41    I am satisfied that this argument must be rejected for reasons already given. It was obvious that the applicant’s previous convictions were relevant to the exercise of the Minister’s discretion. The decision of the Full Court in M238 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 260 is directly on point. In that case the Full Court (Gyles, Conti and Allsop JJ) said at [54]:

Procedural fairness in these circumstances did not require the Departmental submission to be provided to the appellant. Natural justice or procedural fairness is to be equated with fairness in all the circumstances: Kioa v West (1985) 159 CLR 550, 583. What are required are fair and flexible procedures, bearing in mind the circumstances of the case, the issues involved, and the nature of the enquiry and the decision: Kioa v West at 583-85. There is no rule that the person the subject of decision must be given any departmental submission given to the decision maker: cf Local Government Board v Arlidge [1915] AC 120. The submission was a balanced and measured collection and distillation of voluminous material. It contained no adverse matter to which the appellant had not otherwise been alerted by Direction No 21, the apparent nature of the power and common sense. The appellant had had made known to him the questions relevant for him to address and he had an adequate opportunity to do so.

42    The Full Court’s observations with respect to the submission in that case apply to the Departmental Submission in this case. I consider it a balanced and measured document. It did not include any adverse material which the applicant was denied the opportunity to address because the relevance of the matters referred to in the Departmental Submission would have been apparent to the applicant from the Department’s letter of 6 January 2014 and the enclosed copy of Direction 55. I include for this purpose the matters referred to in ground 2(d) of the application for review. In particular, it would have been obvious to the applicant that the risk that his efforts at rehabilitation might fail and that he might re-offend was a matter that was not only relevant to the exercise of the Minister’s discretion, but was a matter that was likely to be of considerable importance. Direction 55 makes clear that the risk to the Australian community should the visa holder re-offend is a primary consideration relevant to the exercise of the statutory discretion. There was nothing said or done by the Minister or his department to suggest that this would not also be a primary consideration when the Minister was giving personal consideration to the applicant’s case.

43    So far as ground 2(d) is concerned, the submission made on behalf of the applicant was that the applicant could not have anticipated that the Minister would have considered it relevant to the exercise of his discretion that the applicant had returned to Fiji on a brief holiday when he was 16 years of age. I do not accept this submission.

44    The applicant made a submission to the Department to the effect that he had no close family in Fiji and that he did not know Fijian culture or customs. At para [35] of his reasons, the Minister noted that the applicant visited Fiji at the age of 16 and that the Minister considered that the applicant was “not entirely unfamiliar with Fijian culture”. That observation was at least in part a response to the applicant’s submission. The Minister did not make a finding that the applicant had any particular knowledge or understanding of Fijian culture or customs. He merely noted that the applicant was not “entirely unfamiliar” with Fijian culture. The Minister also acknowledged that the applicant’s long absence from Fiji may cause some hardship. On a fair reading of the Minister’s reasons, it is apparent that the fact that the applicant visited Fiji at 16 years of age was a minor matter that was relied upon in support of the unremarkable proposition that the applicant was not “entirely unfamiliar” with Fijian culture. I do not think the failure of the Minister or the Department to inform the applicant that the Minister might consider it relevant that the applicant had visited Fiji for a short time when he was 16 years old was a matter that gave rise to any element of unfairness or any practical injustice.

Ground 3

45    At para [39] of his reasons the Minister referred to the “principle that a non-citizen who commits a serious crime should generally forfeit the privilege of staying in Australia.” This statement by the Minister is expressed in similar terms to what appears in para 6.3(2) of Direction 55. Plainly, the Minister was referring not to a principle of law, but to a matter of policy relevant to the exercise of the Minister’s discretion. I therefore read para [39] of the Minister’s reasons as a statement of principle or policy that will generally be applied in the case of a non-citizen who commits a serious crime.

46    The applicant submitted that in having regard to this principle the Minister took into account an irrelevant consideration and that his decision to cancel the applicant’s visa was consequently invalid. The principle which the Minister took into account was said by the applicant to:

… utilise a general rule that a person of a substantial criminal record should have their visa cancelled in order that they forfeit the privilege of staying in Australia. As such, it involved an invalid exercise of the statutory power: Plaintiff S297/20I3 v Minister for Immigration & Border Protection [2014] HCA 3 at [5], [17]-[21]. By s 501(2) the Parliament has established that a person having a “substantial criminal record” -as defined- is at risk of having a visa cancelled. For the Minister to then use this criterion as definitive on the question of whether to exercise his discretion to cancel the visa is inconsistent with the Act for the same reason as explained in S297.

Counsel for the applicant also referred me to s 4(1) of the Act which provides that the object of the Act is to “… regulate in the national interest, the coming into, and presence in, Australia of non-citizens.”

47    In his oral submissions counsel placed emphasis upon the use of the word “forfeit” in para 6.3(2) of Direction 55 as referring to something lost or given up by way of penalty. However, I do not see anything remarkable about the use of the word forfeit in this context. What the paragraph seeks to convey is that, generally speaking, a non-citizen who commits a serious crime should expect that his or her visa will be cancelled, with the consequence that his or her right to stay in Australia will be lost.

48    In Plaintiff S297/2013 v Minister for Immigration and Border Protection (2015) 316 ALR 161 (Plaintiff S297/2013) the High Court found that the Minister’s decision to refuse the plaintiff a protection visa solely because the plaintiff was an unauthorised maritime arrival was not lawfully made. The debate in that case focused upon the prescribed criteria for the grant of a protection visa which included that the Minister be satisfied that the grant of the visa “is in the national interest” (see cl 866.266 of the then Migration Regulations 1994 (Cth)). The High Court held at [5] that the Act did not authorise the application of a general rule that a valid application for a protection visa by an unauthorised maritime arrival must be refused.

49    The High Court did not find it necessary to express any view as to the validity of cl 866.226. However, it was satisfied that, properly construed, cl 866.226 did not permit the Minister to refuse a protection visa to an unauthorised maritime arrival solely on the basis that the Minister was not satisfied that it was in the national interest to grant such a visa. The High Court explained at [18]-[22]:

[18]    In Hot Holdings Pty Ltd v Creasy [(2002) 210 CLR 438; 193 ALR 90; 70 ALD 314; [2002] HCA 51 at [50] (Hot Holdings) per Gaudron, Gummow and Hayne JJ] three members of this court noted that “[i]t has been said that ‘the whole object’ of a statutory provision placing a power into the hands of the Minister ‘is that he may exercise it according to government policy’ [Wade and Forsyth, Administrative Law, 8th ed, 2000, p 464.]”. And where, as here, the criterion to be applied by the minister requires the minister to be satisfied that the grant of the visa is “in the national interest”, the decision-maker “may properly have regard to a wide range of considerations of which some may be seen as bearing upon such matters as the political fortunes of the government of which the minister is a member and, thus, affect the minister’s continuance in office” [Hot Holdings at [50] per Gaudron, Gummow and Hayne JJ].

[19]    Some of those considerations may admit of the formulation of rules of more or less general application which can be understood as expressing some aspect of the minister’s understanding of what may or may not be “in the national interest”. This court’s decision in Minister for Immigration and Multicultural Affairs v Jia Legeng [(2001) 205 CLR 507; 178 ALR 421; 65 ALD 1; [2001] HCA 17 at [100] (Jia Legeng) per Gleeson CJ and Gummow J, at [188]–[191] per Hayne J] (about the minister’s application of “the character test” in the Act) illustrates how there may be “elements of the decision making process about which a decision maker may legitimately form and hold views before coming to consider the exercise of a power in a particular case” [Jia Legeng at [192]]. But, as was pointed out in Jia Legeng, [Jia Legeng at [188]–[189]] those views cannot proceed from, or be based in, an error of law.

[20]    Hence, in the present matter, observing that the minister applied a publicly stated government policy (that no unauthorised maritime arrival should be granted a protection (class XA) visa) when deciding that it was not in the national interest that the plaintiff be granted a visa of that class directs attention to how the cl 866.226 criterion should be construed. The application of the policy does not invoke, in this case, notions of prejudgment or bias [See Jia Legeng at [190] and [192]]. Nor does the application of the policy invoke notions of fettering discretion [See Jia Legeng at [191]]. Rather, the application of the policy directs attention to whether, in applying the cl 866.226 criterion, the minister could attach determinative and adverse significance to the plaintiff’s status as an unauthorised maritime arrival in addition to those consequences which the Act expressly attributes to that status. That is, did the criterion permit the minister to treat the plaintiff’s status as an unauthorised maritime arrival as sufficient to justify the conclusion that it was not in the national interest to grant the plaintiff the visa which he sought?

[21]    The cl 866.226 criterion should not be construed as permitting that course. A criterion operating in that manner would be inconsistent with the Act and invalid, at least to the extent to which it permitted the minister to refuse to grant a valid application for a visa only because the applicant is an unauthorised maritime arrival. By providing in s 46A that an unauthorised maritime arrival may not make a valid application for any visa unless the minister personally determines to lift that bar in respect of a class of visa specified in the determination, the parliament has exhaustively prescribed the visa consequences which follow from the relevant status. Because s 46A states exhaustively what visa consequences attach to being an unauthorised maritime arrival, the general words of cl 866.226 may not be construed as permitting the minister to add to the consequences which the parliament has identified. The affirmative statements in s 46A of those visa consequences appoint or limit an order or form of things in a way which has a negative force [compare R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 at 270; (1956) ALR 163 at 166–7; [1956] HCA 10]. More particularly, the status of unauthorised maritime arrival cannot be treated as a sufficient reason in itself for refusing to grant the visa which the plaintiff lawfully sought in accordance with an earlier ministerial determination under s 46A. Yet that is what the minister did when he decided that it was not in the national interest to grant the plaintiff a protection (class XA) visa. The bare fact of the plaintiff being an unauthorised maritime arrival was treated as determinative of the issue.

[22]    It is unnecessary to decide whether other provisions of the Act dealing with unauthorised maritime arrivals, such as the regional processing provisions of subdiv B of Div 8 of Pt 2 (ss 198AA and 198AJ), support the conclusion that the cl 866.226 criterion cannot be applied by attaching determinative significance to the applicant’s status as an unauthorised maritime arrival. Those other provisions of the Act are at least consistent with that conclusion and do not detract from it in any way.

50    The High Court’s reasoning in Plaintiff S297/2013 does not support the applicant’s submission. In that case, the Minister refused the plaintiff’s visa application solely on the basis that it was not in the national interest to grant a protection visa to an unauthorised maritime arrival without having regard to other considerations relevant to such an application. In the present case the Minister did not cancel the applicant’s visa solely on the basis that the applicant had been convicted of a serious crime. The Minister’s decision was reached after a consideration of a range of relevant matters including the best interests of the applicant’s minor children.

51    It was also submitted on behalf of the applicant that para 6.3(2) of Direction 55 is invalid on the basis that it is inconsistent with the object of the Act because the principle referred to is punitive in character. I do not accept this submission. Paragraph 6.3(2), when read in the context of Direction 55 as a whole, is primarily concerned with the protection of the Australian community. I do not see it as involving any punitive element. More relevantly for the purposes of this case, I do not accept that the Minister’s decision to cancel the applicant’s visa involved any punitive element.

Ground 4

52    Ground 4 criticises the Minister’s decision on the basis that he failed to take into account a relevant consideration, namely, “a proper appraisal” of each of the matters referred to in subparas 4(a) and (b).

53    It was not submitted that the Minister did not take the risk of the applicant re-offending or the prospects for his rehabilitation into account because, no doubt, these matters were explicitly considered by the Minister at [14]-[22] of his reasons. The applicant’s submissions in relation to grounds 4(a) and (b) were instead developed by reference to the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 (Tanielu) in which her Honour quashed a decision made by the Minister personally under s 501(2) of the Act on the basis that he failed to assess the risk of harm to the Australian community occurring in the future by examining the seriousness of any future harm as well as the likelihood of it occurring.

54    The decision of Mortimer J in Tanielu was considered by a Full Court in Moana v Minister for Immigration and Border Protection [2015] FCAFC 54 (North, Jessup and Rangiah JJ) (Moana). The first issue that arose in Moana was whether the risk of harm to the community was a mandatory relevant consideration for the purposes of s 501(2) of the Act. Rangiah J, with North J agreeing, and with Jessup J dissenting, held that it was. The second issue that arose was whether the Minister was bound to consider the risk of harm to the community in any particular way. Rangiah J (North J agreeing) held at [72] that in exercising the discretion in s 501(2), the Minister is not bound to engage in an evaluation of the likelihood of a person engaging in future conduct which may cause harm. His Honour added at [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.

55    In the present case it is clear that the Minister took the risk of harm to the Australian community into account. In doing so he was not required to engage in any particular form of analysis or reasoning. In particular, it was open to the Minister to exercise his discretion to cancel the applicant’s visa without undertaking any particular form of risk assessment or evaluation. In the present case it was sufficient for the Minister to find that there was a risk that the applicant would re-offend.

56    As to ground 4(b) and the reference to Judge Conlon’s sentencing remarks, the Minister was not bound to take these into account: see Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at [74] per Kiefel and Bennett JJ. In any event, a copy of Judge Conlon’s sentencing remarks were attached to the Departmental Submission and I am not persuaded that what his Honour had to say was not taken into account by the Minister.

57    As to ground 4(c), the applicant submitted that the Minister was bound to take into consideration the fact that the applicant was not legally aided or assisted in the preparation of his submission to the Minister. In support of this submission the applicant’s counsel referred me to Art 13 of the International Covenant on Civil and Political Rights (“the Covenant”) which states:

An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

58    I do not accept the applicant’s submission. In my opinion, the Covenant does not itself require that the competent authority have regard to the fact that the person who is or may be expelled is not legally represented in arriving at its decision. Nor does Art 13 require the State to ensure that the person concerned has the benefit of legal representation. In any event, whatever the true scope and meaning of Art 13, there is nothing in the subject matter, scope or purpose of the Act including, in particular, s 4 or s 501, to suggest that the Minister is bound to have regard to the fact that the visa-holder is not legally aided or assisted in preparing his or her submission to the Minister.

DISPOSITION

59    I have rejected each of the grounds of review upon which the applicant relied. In the result, the application will be dismissed with costs.

60    The Court expresses its gratitude to counsel for the applicant, Mr Seymour, who accepted a referral under r 4.12 of the Federal Court Rules 2011 (Cth).

Associate:

Dated:    1 September 2015