FEDERAL COURT OF AUSTRALIA

SZSLM v Minister for Immigration and Border Protection [2015] FCA 997

THE COURT ORDERS THAT:

1.    The applicant be known by the pseudonym “SZSLM” and his real name not be published.

2.    Until further order, no one but the parties and their legal representatives be permitted access to the “Bundle of Documents” filed by the respondent on 3 March 2015.

3.    The originating application filed on 4 December 2014 be dismissed.

4.    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

1    The applicant is a Nigerian citizen with a criminal record. He is currently in immigration detention. He twice applied for a protection visa. Each time his application was rejected. On 26 November 2013, whilst in immigration detention, he applied for a bridging visa pending the completion of the “process[ing]” of his second application for a protection visa. On 12 February 2014 the Minister decided to refuse the application but on 22 April 2014 and by consent the Court quashed the Minister’s decision for jurisdictional error and ordered that the application be determined according to law. On 6 November 2014, however, the Minister once again decided to refuse the application. The applicant submits that in so doing the Minister again fell into error and has filed an application for review seeking to have that decision set aside and to require the Minister to reconsider his decision a second time. For the following reasons that application must be dismissed.

Background

2    The applicant arrived in Australia on 18 September 2000 on a false passport. Three months later he applied for a protection (class XA) visa. His application was not granted. A review of the merits by the Refugee Review Tribunal resulted in the Minister’s decision being affirmed. The applicant successfully sought judicial review of this decision which resulted in the decision being quashed (by consent) and the Tribunal being ordered to reconsider it according to law. On 19 August 2004 the Tribunal remitted the matter to the Minister for reconsideration with the direction that the applicant satisfied Art 1A(2) of the Refugees Convention. But on 7 February 2005 a delegate of the Minister refused the application on the ground that the applicant had departed Australia and had not returned.

3    In the meantime, the applicant was charged with the offence of attempting to possess a prohibited import, namely a trafficable quantity of cocaine (774.3g) with a street value of approximately $880,000, and placed on conditional bail. But on 22 August 2004, three days after the Tribunal’s second decision, the applicant breached his bail conditions by fleeing the country on a stolen passport. He was quickly located in the United Kingdom from which he was extradited, and taken into custody. He pleaded not guilty to the drug offence in the District Court of New South Wales but was convicted following a trial. He was also convicted of the offence of failing to appear (a breach of bail offence), to which he had pleaded guilty, and, on 20 September 2006, he was sentenced to 12 years imprisonment for the drug offence, with a non-parole period of eight years, and imprisonment for two years, with a non-parole period of one year and four months, for the breach of bail. The sentences were backdated to 10 August 2004. The applicant applied to the NSW Court of Criminal Appeal for an extension of time to appeal his sentence but his application was refused.

4    On 12 December 2011 the applicant lodged a second application for a protection (class XA) visa. On 28 May 2012 a delegate of the Minister refused the application and the delegate’s decision was affirmed on review by the Tribunal. Once again, the applicant sought judicial review and, once again, he was successful, with the Federal Magistrates Court (as the Federal Circuit Court was then known) quashing the Tribunal’s decision (again, by consent) and remitting the application to the Tribunal for reconsideration. The Tribunal reconsidered the application and affirmed the delegate’s decision a second time. The applicant applied to the Federal Circuit Court for judicial review but that application was also dismissed. The applicant appealed, but his appeal was unsuccessful and special leave to appeal to the High Court was refused.

The visa application

5    The visa in question in this case is a Bridging E (Class WE) visa.

6    The application was made on 26 November 2013, while the judicial review proceedings were pending in the Federal Circuit Court. In his application the applicant stated that he intended to apply for “[p]artner visas” once he was released from detention. In a letter, addressed to the Minister’s Department the applicant said that his purpose in applying for the visa was to be with his wife (whom he had married less than a month earlier at the Villawood Immigration Detention Centre) “and help her through her stress and day to day life and to be able to support her physically and emotionally …”. He expressed remorse for his crimes, sought to persuade the Department that he had worked hard on his rehabilitation and submitted that the community had nothing to fear from him. He also expressed his concern to be around for his young son. He said that, if his application were granted, he would reside with his wife. He indicated his willingness to abide by all conditions that may be imposed upon him while in the community on a bridging visa.

7    The application was supported by various documents, including a statutory declaration from the applicant’s wife, which was later supplemented by correspondence, as well as letters of support from his father-in-law and a friend of his wife.

8    The Minister elected to consider the case personally, rather than to refer it to a delegate. On 12 February 2014 he refused the application on character grounds but, on 22 April 2014, his decision was set aside by consent, the Minister conceding that the decision was affected by jurisdictional error. The admitted error was that he incorrectly considered the visa application on the basis that the applicant was seeking the visa for the purpose of pursuing a judicial review proceeding, rather than on the basis that he was intending to apply for a substantive visa to remain in Australia, and therefore he had failed to consider the matters set out in item 050.212(3) of Sch 2 of the Migration Regulations 1994 (Cth).

9    The Minister reconsidered the application but, on 6 November 2014, he again refused it.

The statutory framework

10    Section 65 of the Migration Act provides that the Minister is bound to grant a visa to an applicant who submits a valid application if the Minister is satisfied that the criteria prescribed by the Act and Regulations have been satisfied.

11    Some of the criteria for the grant of a Bridging E (Class WE) visa are set out in Pt 050 of Sch 2 of the Regulations. “Primary” criteria to be satisfied at the time of application are contained in item 050.21 of the Regulations. The applicant relied on the following paragraph of item 050.212(3):

An applicant meets the requirements of this subclause if:

(a)    the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined; or

(b)    the Minister is satisfied that the applicant will apply, in Australia, within a period allowed by the Minister for the purpose, for a substantive visa of a kind that can be granted if the applicant is in Australia.

…

12    The applicant also drew attention to items 050.5 and 050.511:

050.5—When visa is in effect

050.511

    In the case of a visa granted to a non-citizen (other than a non-citizen to whom subclause 050.222(3) applies) who has applied for a substantive visa—bridging visa:

(a)    coming into effect on grant; and

(b)    permitting the holder to remain in Australia until:

(i)    if the Minister’s decision in respect of the substantive visa application is to grant a visa—the grant of the visa; or

(ii)    if the Minister’s decision in respect of that application is to refuse to grant a visa—28 days after the holder is notified of that refusal; or

(iii)    if the substantive visa application is refused and the holder applies, or purports to apply, for merits review of that refusal:

    (A)    28 days after notification by the review authority:

(I)    of its decision on the merits review; or

(II)    that the application for merits review was not made in accordance with the law governing the making of applications to that review authority; or

    (B)    if the holder has the right to apply to another review authority for merits review of the decision of the review authority and so applies, or purports to apply—28 days after notification by the other review authority:

(I)    of its decision on the merits review; or

(II)    that the application for merits review was not made in accordance with the law governing the making of applications to that review authority; or

(iv)    if the holder withdraws his or her application for a substantive visa or an application to a review authority—28 days after that withdrawal; or

(v)    the grant of a further bridging visa to the holder in respect of his or her substantive visa application; or

(vi)    if the holder is notified by Immigration that the substantive visa application is invalid—28 days after the notification; or

(vii)    if a review authority remits the application for the substantive visa to the Minister for reconsideration—permitting the holder of the bridging visa to remain in Australia in accordance with the relevant provision of this paragraph.

13    Despite s 65, the Minister may refuse to grant a visa to a person if the person does not satisfy him that the person passes “the character test”: Migration Act, s 501(1). The character test is defined by s 501(6), which contains a list of matters which, for the purposes of the section, describe the circumstances in which a person does not pass the character test. Relevantly, the list includes:

(a)    the person has a substantial criminal record (as defined in subsection (7))[.]

14    Subsection (7) states that, for the purposes of the character test, a person has a substantial criminal record if, amongst other things:

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

15    The Minister must give the person written notice of the decision, refer to the provision under which the decision was made, set out the effect of that provision, and explain the reasons (“other than non-disclosable information”) for the decision: s 501G.

The Minister’s reasons

16    The Minister noted the relevant terms of s 501, the applicant’s conviction and sentence in the District Court, and determined, unsurprisingly, that the applicant had a substantial criminal record and so does not pass the character test. At this point the Minister considered whether or not he should exercise his discretion to refuse to grant the applicant a visa. He began by acknowledging “the Government’s commitment to using s 501 of the Act to protect the Australian community from harm that may result from criminal activity or other serious conduct by non-citizens”. Indeed this consideration was the centrepiece of the Minister’s reasons. The Minister added that he was also “mindful that remaining in Australia is a privilege in the expectation that non-citizens are law-abiding and will respect Australia’s law-enforcement framework”. He then had regard to the following considerations:

    the nature and seriousness of the applicant’s conduct, noting his convictions and sentences and the sentencing judge’s description of him as a principal and the judge’s comments about the destructive impact on the community of the supply of drugs like cocaine;

    the risk to the Australian community if the applicant were to reoffend;

    statements provided by the applicant and on his behalf;

    the interests of the applicant’s 10 year old son;

    the interests and concerns of the applicant’s wife;

    Australia’s non-refoulement obligations; and

    the fact that the refusal of this application would result in the applicant remaining in immigration detention while judicial review was in progress.

17    This last observation seems to be an error. The judicial review proceeding had concluded by the time of the Minister’s decision. Nothing, however, turns on the error. Certainly, the applicant was untroubled by it.

18    On the subject of the risk to the Australian community, the Minister stated:

9.    I am mindful of the principle that Australia has a low tolerance for any criminal conduct by visa applicants and that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases.

10.    Further similar conduct would contribute significantly to the supply of illicit drugs in Australia and add proportionately to the serious problems that such supply creates for the Australian community.

11.    I took into consideration [the applicant’s] attempts to further his education while in prison and the assistance he has provided to young offenders overcoming drug dependency. In doing so however, I noted [the applicant] was previously prepared to commit a major drug offence for financial reasons and that his rehabilitation has not been tested in the community.

12.    I considered that [the applicant’s] reliability in living up to his commitments is called into some doubt by his use of a false travel document to enter Australia, is breach of bail in evading justice while awaiting trial and his use of fabricated claims and evidence in seeking a Protection visa.

13.    I took into account the statements provided by and on behalf of [the applicant.]

(Emphasis added.)

19    In considering the interests of the applicant’s young son the Minister acknowledged the applicant’s wish to play a part in his life and his recent attempts to make contact with him but noted that the applicant had been in detention or outside Australia for virtually the whole of his son’s life and has had no contact with him since infancy. For these reasons, the Minister concluded that the applicant had had “little or no part in his son’s life to date and there is no active relationship between them at present”. He continued:

16.    Despite the absence of any currently active relationship or any indication that [his son] wishes to have contact with his father, or that his mother (previous partner of [the applicant]) would be prepared to allow this to happen, I acknowledge that it is possible that [the son] may wish to have some contact with [the applicant] during what remains of his minor years. He could do so via email or regular mail, or via telephone calls, even if [the applicant] is in another country, though it would be much harder for [his son] to have physical contact with [the applicant] if he is not in Australia. I therefore accept that it is in [the son’s] best interest that [the applicant] visa application not be refused.

20    As I have already mentioned, the Minister also took into account the interests of the applicant’s wife. In that regard he noted her concern about her current medical issues and accepted that it would be beneficial to her to have her husband’s emotional support at this time. He also noted her stated intention to accompany her husband to Nigeria in the event that he could not stay in Australia and her concern for her welfare if she had to live there. Finally (at [21]), he noted that the applicant would not be able to apply for a partner visa if his application for a bridging visa were refused but said this would not prevent him from lodging an application once he was outside Australia.

21    The Minister concluded that there was an unacceptable risk to the Australian community despite the “countervailing” factors in the applicant’s favour, in particular the interests of his son and the impact of a refusal on his wife.

The application for review

22    The Minister’s decision is a “privative clause decision” within the meaning of s 474(2) of the Migration Act, that is to say it is “final and conclusive” and not susceptible to challenge, appeal or review, save for jurisdictional error:  s 474(1), Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

23    It was common ground – indeed, it is unarguable – that the applicant does not pass the character test. The application seeks to impugn the exercise of the Minister’s discretion.

24    The originating application pleaded two grounds. The second, alleging that the decision was affected by apprehended bias, was not pressed. The first and now only ground reads as follows:

The Respondent failed to give consideration to the Applicant’s stated intention to apply for Partner visas to remain in Australia if granted a Bridging visa.

Particulars

The Respondent decided the application for a bridging visa class WE taking into consideration only the Applicant’s current circumstances of being in detention. The Applicant had clearly stated his intention of applying for temporary and permanent Partner visas if released from detention. The Respondent did not consider what impact the grant of such visas would have on the Applicant’s future involvement in the Australian community or the long-term interests of either the Applicant’s spouse or his son.

The applicant’s submissions

25    In his written submissions, signed and presumably drafted by the applicant’s solicitor and advocate, Mr Jones, the applicant pointed to his wife’s statutory declaration in which she had given an assurance that he would be able to live with her and she could support him financially. The applicant submitted that the Minister failed to consider that, by granting him a bridging visa “for the stated purpose of permitting him to lodge an application leading to permanent residence, with a statutory minimum processing time of two years”, he would have the opportunity of making “further attempts” to establish a relationship with his son and to become rehabilitated with his wife’s assistance.

26    The applicant also submitted that the Minister had failed to take into account the fact that the applicant had been granted parole by the NSW Parole Board.

No jurisdictional error

27    It is convenient to deal first with the submission concerning parole.

28    The Minister did not mention the fact that the applicant was on parole in his reasons for decision although he was obviously aware of it. It was mentioned in the Departmental submission that was before him at the time that he made his decision. It was also referred to by the applicant’s solicitor in his submission to the Minister. Section 25D of the Acts Interpretation Act 1901 (Cth) provides that where a person making a decision is required to give written reasons for the decision, the instrument giving the reasons must “set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based”. In these circumstances, where the Minister was plainly alive to the fact that the applicant was on parole, there is no reason to conclude that he failed to take it into account. Rather, as the Minister submitted, the absence of an express reference to this circumstance should be taken as an indication that he did not regard it as material or, I would add, that it was not evidence or material upon which his findings were based.

29    The sole ground of review mentioned in the originating application, however, is that the Minister failed to consider that, if his application for a bridging visa were successful, the applicant intended to apply for “[p]artner visas”.

30    This allegation cannot be accepted, having regard to what the Minister said at [21] of his statement of reasons, which I summarised above in the concluding sentence of [19]. Furthermore, the Minister said (at [13] of his statement of reasons) that he took into account the statements provided by and on behalf of the applicant. In the applicant’s statement he said (relevantly, and without alteration):

Being in community will give me more opportunity to be contributing in the community and have a full involvement in my wife, family and friends life, and would also help in managing my anxiety and stress and not fall into depression.

…

If I am in the community, I will not let myself and my family down again. I will pick this chance as an opportunity to prove myself that I am a better man.

…

31    There is no reason to disbelieve the Minister when he said that he had regard to these matters. Clearly, however, he gave them little or no weight. He believed the applicant’s assurances to be unreliable, if not hollow, and was concerned that the applicant’s rehabilitation, as he put it, had not been tested. The Minister’s overriding concern, as I have already indicated, was the risk that granting the visa would pose to the Australian community.

32    Nor is there any doubt that the Minister took into account the long-term interests of both the applicant’s wife and his son, and I have referred to the parts of the Minister’s statement of reasons where those matters are considered.

33    In any case, assuming in the applicant’s favour that the allegations made in both his originating application and his submissions are true and the Minister erred in the respects alleged, the errors were not jurisdictional.

34    The Minister is free to decide for himself what considerations should bear upon the exercise of his discretion unless the Act expressly or by implication from its subject-matter, scope and purpose requires him to take particular factors into account. The Minister’s discretion under s 501(1) is very broad. The Act is silent as to what factors must be considered. As Allsop CJ and I observed in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 (“NBMZ”) at [6]:

The discretion under s 501(1) of the Act is unfettered in its terms, the usual consequence of which can be seen in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 [(“Huynh”)] at [71] and [74]. The Minister is not bound by “Direction No 55 — Visa refusal and cancellation under s 501” issued under s 499(1) of the Act, which his delegates must follow. Nevertheless, the law imposes certain limits on the exercise of the discretion. The Minister may not act arbitrarily, capriciously or legally unreasonably. The subject matter, scope and purpose of the Act may also require that certain considerations be taken into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39; and Huynh at [71].

35    Huynh involved a decision to cancel a visa under s 501(2) but, for present purposes, the distinction is irrelevant. The discretion to refuse to grant a visa under s 501(1) is cast in relevantly identical terms. In Huynh the primary judge held that, where the possession of a criminal record is the reason why a person does not pass the character test, the circumstances surrounding the commission of the offences and the sentences imposed in respect of them are “highly relevant” considerations. As the information on sentence is usually gleaned from the remarks of the sentencing judge, and, in the event of an appeal, the remarks of the appellate court, where they disclose matters which mitigate the overall criminality, they might affect the Minister’s decision if he knew of them. In that case the Minister was given the sentencing judge’s observations but not a passage in the reasons of the Court of Criminal Appeal dealing with the applicant’s level of complicity in the offence. His Honour held that failing to have regard to what was said in those reasons was a failure to have regard to relevant considerations.

36    By a majority (Wilcox J dissenting) the Full Court allowed the Minister’s appeal.

37    In concluding that the primary judge’s approach was erroneous, Kiefel and Bennett JJ noted at [71] the limited meaning of a relevant consideration in administrative law. Drawing on the remarks of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39–40, their Honours observed that a relevant consideration is one which the decision-maker is bound to take into account and that whether that obligation arises in a particular case depends on the statute conferring the discretion. In the absence of an express requirement, the question is to be “determined by implication from the subject-matter, scope and purpose of the Act”.

38    Their Honours emphasised the breadth of the discretion. They said at [74]:

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.

39    Recently, in Moana v Minister for Immigration and Border Protection [2015] FCAFC 54 at [73] Rangiah J, with whom North J agreed at [1], referred to this paragraph in Hyunh and said he was unable to see how s 501(2) could be construed to require the Minister to take into account personal factors which might moderate the risk the person might pose to the community. While his Honour considered that in the exercise of the discretion under s 501(2) the Minister is required to consider whether there is a risk of harm to the Australian community posed by the continuing presence of the visa holder in Australia (at [66]), he held (at [72]) that he is “not bound to engage in an evaluation of the likelihood of a person engaging in future conduct which may cause harm”.

40    Here, the essence of the applicant’s case is that the Minister erred in refusing to grant him a bridging visa because the Minister did not consider the possibility that, while in the community awaiting the Minister’s decision as to whether he should grant him “[p]artner visas”, the applicant might yet prove that he was capable of rehabilitating himself. There is nothing in the subject-matter, scope or purpose of the Act which would imply an obligation on the Minister’s part to take into account that possibility.

41    In his written submissions, Mr Jones did not refer to any authority and he made no attempt to explain why the Minister’s decision gave rise to jurisdictional error. In his oral submissions, he sought to brush aside the authorities to which I have referred. He dismissed the notion that the Minister could only be found to have committed a jurisdictional error if the considerations to which he pointed were mandatory. Rather, he submitted that the relevant authority was Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 194 ALR 244 (“Htun”) and, in particular, the observation made in that case by Allsop J (as his Honour then was) at [42] that “[t]o make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on”. He argued that the Minister was bound to consider the case which was put.

42    This submission is misconceived. Htun concerned an application for a protection visa. His Honour was considering the exercise of the Refugee Review Tribunal’s review obligations under s 414 of the Act. The “claims” to which his Honour was referring was not a reference to everything said in support of the application but to the reasons the applicant was claiming that he met the refugee criterion in s 36 of the Act. Htun says nothing about the exercise of the discretion under s 501. Nor are his Honour’s words helpful by analogy, as Mr Jones submitted.

43    Here, as in Huynh, the matters the applicant urged upon the Court as relevant considerations were very much factors personal to the applicant. They did not involve the legal or statutory consequences of the decision: cf. NBMZ at [8]–[9]. Any failure to take them into account would not give rise to jurisdictional error. To paraphrase the Minister’s submission, he was under no legal obligation to expose the Australian community to an untested risk of harm in order to give the applicant a chance to prove himself.

Conclusion

44    It follows that the originating application must be dismissed. Costs should follow the event.

Associate:    

Dated:    9 September 2015