FEDERAL COURT OF AUSTRALIA

Mehta v Minister for Immigration and Border Protection [2015] FCA 1096

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    In this proceeding the applicant, Mr Amit Mehta, sought judicial review of a decision of the Minister for Immigration and Border Protection to cancel his Class WC Subclass 030 (Bridging C) visa. The Minister cancelled the bridging visa on character grounds, pursuant to s 501(2) of the Migration Act 1958 (Cth) (“the Act”).

2    It is not in dispute that Mr Mehta does not pass the character test under s 501 as he has a substantial criminal record pursuant to ss 501(6) and (7) of the Act. The issue is whether the Minister was required to and/or properly took into account the interests of Mr Mehta’s spouse and their then unborn child in making his decision under s 501(2).

3    I thank counsel for both sides for the care and clarity of their submissions.

4    For the reasons I now set out, I have dismissed the application and ordered Mr Mehta to pay the Minister’s costs.

FACTUAL BACKGROUND

5    The facts are uncontentious.

6    Mr Mehta was born in India on 24 August 1985 and arrived in Australia in January 2006 on a Class TU Subclass 573 – Higher Education Sector visa. He has remained in Australia since that date except for a brief period between 8 September 2006 and 1 October 2006. He formed a relationship with Ms Anna Digilova, who is an Australian citizen, in October 2007.

7    His student visa expired on 30 September 2009. On 21 May 2012 he lodged an application for a Class UK (Partner Temporary) Subclass 820 visa which was sponsored by the Ms Digilova. As a result of this application he was granted the bridging visa pending the decision on his substantive application.

8    On 26 August 2011 Mr Mehta was sentenced in the County Court of Victoria on charges that in June 2008 he intentionally caused injury, made threats to kill, and committed theft. In the reasons for sentence Judge Damian Murphy said that Mr Mehta and a friend approached the complainant, a 19 year old heroin addict, who was engaging in prostitution in St Kilda. She agreed to engage in sexual intercourse for a sum of $100 and entered the front passenger seat of Mr Mehta’s vehicle which he then drove to a lane in Balaclava. Judge Murphy was satisfied beyond reasonable doubt that the jury accepted the complainant’s account that immediately after the car had reached the laneway, Mr Mehta pounced on the complainant, held one of her hands and tried to strangle her with his other hand, pulled her hair, bit her, punched her repeatedly, threatened to kill her, and sexually penetrated her before pushing her out of the car naked except for her shoes and jewellery, and without her handbag, money and mobile phone. Mr Mehta then drove off.

9    Mr Mehta was sentenced to 15 months imprisonment on the charge of intentionally causing injury, 12 months’ imprisonment on the charge of a threat to kill, and three months imprisonment on the charge of theft. As a result of concurrent sentence orders the total effective sentence was 18 months’ imprisonment. However, the Court ordered that the sentence be wholly suspended for 18 months provided Mr Mehta did not in the interim commit any further offence carrying a term of imprisonment.

10    Prior to being convicted and sentenced on those charges Mr Mehta had committed multiple driving offences. In June 2009 he was convicted of failing to stop on a police request, unlicensed driving, driving at a dangerous speed and driving whilst disqualified, and sentenced to five months’ imprisonment suspended for one year. In September 2011 he was convicted of two further charges of driving whilst disqualified and sentenced to three months’ imprisonment to be served by way of an intensive corrections order.

11    Then, on 3 October 2012, Mr Mehta was sentenced in the County Court of Victoria in relation to driving offences committed after he received the suspended sentence on 26 August 2011, and was given a sentence of 6 months’ imprisonment on two charges of driving whilst disqualified and one charge of refusing a breath test. This meant he had breached the intensive correction order of 12 September 2011 and the suspended sentence. Judge Murphy made orders restoring the original sentence of 18 months imprisonment and Mr Mehta was imprisoned.

12    On 4 April 2013, while Mr Mehta was in prison, the Department of Immigration and Citizenship (“the Department”) gave him notice that it intended to consider cancelling his visa under s 501(2) of the Act, on the basis that he had did not pass the character test pursuant to s 501(6) of the Act as he had a “substantial criminal record” as defined in s 501(7).

13    Through his solicitors Mr Mehta provided written submissions to the Minister on 22 July 2013, 20 September 2013 and 12 May 2014. The submissions included statutory declarations by Mr Mehta and Ms Digilova, as well as a psychologist’s report, letters of reference and other supporting documentation. They chiefly concerned his continuing relationship with his de facto partner, Ms Digilova, and what he said were the substantial efforts he had made and would continue to make, at rehabilitation. In submissions dated 12 May 2014 Mr Mehta advised that Ms Digilova was pregnant with his child. Essentially, Mr Mehta submitted that notwithstanding his failure to pass the character test the Minister should exercise the discretion not to cancel the bridging visa.

14    On 13 June 2014 the Department requested the Minister to consider cancelling Mr Mehta’s visa on character grounds, and asked him whether he wished to personally consider the case or refer it for consideration by a delegate. Relevantly, the Department submitted that:

Mr MEHTA has been in a spousal relationship with Ms Digilova since 2007. It is apparent from various statements from Ms Digilova and her family that Mr MEHTA has been accepted into their family. Ms Digilova is now pregnant with Mr MEHTA’s child.

(Emphasis added.)

15    The submissions included an Issues Paper which stated:

Other Considerations

[62] Mr MEHTA states in his statutory declaration at that [sic] he has been in a spousal relationship with Ms Anna Digilova since October 2007. Ms Digilova affirms this statement in her statutory declaration. In addition Ms Digilova states that:

“If Amit is deported, I do not know what I will do. I love him with everything that I have, he is my whole life and at the same time I cannot leave my family. Amit’s deportation would cause me so much pain pain [sic] and I am worried for my health when I think of what would happen. I am also worried for my mother and grandparents who would also be affected if his visa were cancelled…

I have not even told my grandparents about the Notice of Intention to Consider Cancellation as [Ms Digilova’s grandfather] has recently had a heart attack and I worry greatly that this news could affect his health”.

[63] Mr MEHTA’s representative informed the department on 12 May 2014 that Ms Digilova is now pregnant with Mr MEHTA’s child and that Ms Digilova… “hopes to rely on Amit as her partner for emotional, pragmatic and financial support will into the future”.

[64] Ms Digilova’s mother Zara Digilova states in her letter that should Mr MEHTA’s visa be cancelled “it would hurt our family deeply”. It is apparent from various statements from Ms Digilova and her family that Mr MEHTA has been accepted into their family.

…

[66] Ms Digilova has stated that she wouldn’t accompany Mr MEHTA to India as she would not leave her mother. Ms Digilova describes her mother as emotionally fragile and vulnerable and would be distraught if she left. It is open to you to consider that Mr MEHTA’s removal from Australia would result in Ms Digilova’s and her family experiencing emotional hardship should his visa be cancelled.

(Emphasis added. References to attachments omitted.)

16    On 17 November 2014 the Minister decided to personally consider Mr Mehta’s case, and decided to exercise his discretion to cancel Mr Mehta's visa. In the statement of reasons accompanying his decision (“Statement of Reasons”) the Minister said that:

(1)    he considered Mr Mehta’s offence to be a very serious violent offence that was repugnant to the Australian community and offended the values of Australian society;

(2)    while Mr Mehta had provided professional opinions that his risk of reoffending was low, balanced against that the Minister considered that his criminal record demonstrated his disregard for the law, and that he had difficulty in complying with the requirements placed on him by the courts and in living up to his undertakings and obligations, noting that he had continued to offend despite custodial sentences and penalties; and

(3)    if Mr Mehta was to reoffend in this violent manner there was a possibility that his victims would be significantly traumatised, with the possibility of ongoing psychological illness and physical injury.

17    The Minister also said:

Ties to Australia

…

[18] Mr MEHTA has been a spousal relationship with Ms Digilova since 2007. It is apparent from various statements from Ms Digilova and her family that Mr Mehta has been accepted into their family.

…

Other Considerations

[21] I note that Mr MEHTA has been in a spousal relationship with Ms Digilova since 2007 and that it is apparent from various statements from Ms Digilova and her family that Mr MEHTA has been accepted into their family, including as the father of his spouse’s child.

…

Conclusion

[24] I considered all relevant matters including (1) an assessment against the character test as defined by s 501(6) of the Migration Act 1958, and (2) all other evidence available to me, including evidence provided by, or on behalf of Mr MEHTA.

[25] In reaching my decision I concluded that Mr MEHTA represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations including his spousal relationship.

[26] I also find that the Australian community could be exposed to great harm should Mr MEHTA reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr MEHTA. The Australian community should not tolerate any further risk of harm. I found these factors outweighed any countervailing considerations in Mr MEHTA’s case.

[27] Having given full consideration to all of these matters, I decided to exercise my discretion to cancel Mr MEHTA’s Class WC, Subclass 030 (Bridging C) visa under s 501(2).

(Emphasis added.)

18    Mr Mehta’s and Ms Digilova’s child was born on 16 December 2014, about one month after the visa cancellation decision.

LEGAL FRAMEWORK

19    Section 501 of the Act relevantly provides:

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.

…

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

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

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

…

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

…

In short, it provides that if a non-citizen with a visa fails the character test the Minister may cancel that visa.

20    If a decision is made to cancel a visa the Minister must give the person written notice that sets out the reasons for the decision: s 501G. A merits review is available to the Administrative Appeals Tribunal where the decision-maker is a delegate of the Minister but that is not the case where the Minister makes the decision personally: s 500(1). Mr Mehta’s only right of review is in this Court on grounds of jurisdictional error.

21    The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) (“the Amendment Act”) amended s 501 and related provisions of the Act with effect from 11 December 2014, but the application falls to be decided on the section as it stood on the date of the Minister’s decision: Moana v Minister for Immigration and Border Protection [2015] FCAFC 54 (“Moana”) at [28].

Direction 55

22    Under s 499 the Minister has power to give written directions to a person or body having functions or powers under the Act. On 25 July 2012 the Minister made Direction 55, the objective of which is “to guide decision-makers performing functions or exercising powers under section 501 of the Act to refuse to grant a visa to, or to cancel the visa of, a person who does not satisfy the Minister that the person passes the character test.”

23    Direction 55 prescribes a number of relevant considerations to be taken into account by a decision-maker deciding whether to cancel a person’s visa. They relevantly include protection of the Australian community from criminal or other serious conduct (which includes the nature and seriousness of the person’s conduct to date and the risk to the Australian community should the person commit further offences or engage in other serious conduct), the strength, duration and nature of the person’s ties to Australia, the best interests of minor children in Australia, and the effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents or people who have the right to remain in Australia indefinitely.

24    Although, in broad terms, the Statement of Reasons followed the format of Direction 55, it is common ground that the Direction does not constrain the Minister’s exercise of discretion when the Minister makes the decision personally: NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; [2014] FCAFC 38 (“NBMZ”) at [6] (Allsop CJ and Katzmann J).

The grounds of the application

25    The only issue in the application is whether the Minister was required to, and/or properly took into account, the interests of Mr Mehta’s spouse and unborn child in making his decision under s 501(2). Mr Mehta made two main submissions:

(a)    first, that his spousal relationship with Ms Digilova and unborn child were mandatory relevant considerations that were required to be considered the Minister; and

(b)    second, even if his spousal relationship with Ms Digilova and unborn child were not mandatory relevant considerations, once they were raised by the Minister as considerations in cancelling his visa it was incumbent upon the Minister to give those matters genuine and proper consideration. On his contention, that was particularly so when Ms Digilova was an Australian citizen and her child was to become an Australian citizen by birth.

26    Mr Mehta did not argue that his unborn child was a “child” for the purposes of cases relating to the requirement to consider “the best interests of the child”. Counsel for Mr Mehta conceded that the fact that the visa cancellation decision was made one month before the birth of Mr Mehta’s child meant that argument was not open: see SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459 at [28] (Griffiths J); Kalm v Administrative Appeals Tribunal and Anor (2013) 215 FCR 221; [2013] FCA 890 at [8] (Jessup J).

Consideration

Were Mr Mehta’s spousal relationship and/or unborn child mandatory relevant considerations for the Minister?

27    The discretion in s 501 is unfettered in its terms. It does not contain any criteria required to be considered by the Minister in deciding to cancel a visa. It is largely left to the Minister to decide what matters are relevant and what weight is to be given to any matter. However, as the majority said in NBMZ at [6]:

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].

28    In Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 (“Huynh”) at [71] and [74] (Kiefel and Bennett JJ) the majority said:

With respect to his Honour, the fact of possession of a criminal record, the reason why a person does not pass the character test, does not of itself render the circumstances surrounding the offences committed, and the reasons for the sentences imposed for them, relevant considerations to the exercise of the Minister’s discretion. A relevant consideration in an administrative law sense has a limited meaning. It is one which the decision-maker is bound to take into account in making the decision in question. The factors which the decision-maker is bound to take into account are determined by the construction of the statute conferring the discretion. If they are not stated, they are to be determined by implication from the subject-matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J.

…

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.

(Emphasis added.)

29    In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 (“Nystrom”) at [127]-[128] (Heydon and Crennan JJ, with Gleeson CJ agreeing) the plurality referred with approval to Sean Investments Pty Ltd v McKellar (1981) 38 ALR 363 and to the reasons of the majority in Huynh. Their Honours said:

… it is not possible to imply into the Act “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.”

Parliament has left it to the Minister to decide the matters which are relevant to whether a person who fails the character test should be permitted to remain in Australia. Considerations relevant to the exercise of the power depend on the nature, scope and purpose of the power, understood in its context.

30    Mr Mehta submitted that the majority judgment in Huynh should be confined to its facts and seen in light of the submissions that were put in that case, namely whether the Minister was required to consider the circumstances surrounding the offences. He contended that it does not stand for the broader proposition that the discretion of the Minister under s 501(2) of the Act is unconstrained. In support of this contention Mr Mehta relied on Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 (“Tanielu”) at [120]-[122] in which Mortimer J said:

It is also correct that a Full Court of this Court in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 rejected the proposition that matters such as the circumstances surrounding the offences committed by an individual were a relevant consideration, in the Peko-Wallsend sense, in the exercise of the s 501(2) discretion. As the respondent noted in his supplementary submission, in Huynh the Full Court observed that, if the Minister is able to consider a matter as broad as the national interest in exercising the s 501(2) discretion, it is hardly likely that matters as specific as the circumstances of an individual’s offending would be contemplated by the Migration Act as mandatory. It is important to note those observations in Huynh were made in the context of a submission put to the Full Court that the Minister was obliged to take into account the remarks of the Court of Appeal in sentencing the visa holder, which dealt with mitigating factors in her offending.

Like Buchanan J in NBNB at [117], I do not see Huynh as standing for any broader proposition than that the factor as identified in that case is not a relevant consideration in the exercise of the s 501(2) discretion.

None of the foregoing contradicts the well-established proposition that, although the discretion is not fettered by any express limitation, it must nevertheless be exercised by reference to considerations identified from the subject matter, scope and purpose of the statute: see Drummond J in Jahnke v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 268 at [17]. What is critical then is the identification of the particular relevant consideration and how the subject matter, scope and purpose of the statute might be said to require that it be taken into account. Huynh does not deny this is the correct approach.

See also the observations of Buchanan J in NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44; [2014] FCAFC 39 (“NBNB”) at [117]-[118].

31    Mr Mehta also submitted that the refusal of the majority in Huynh to imply an obligation on the Minister to consider specific factors personal to the visa holder should be read in a confined manner, so that it related only to matters specific to the visa holder rather than the interests of others. On this approach to Huynh, counsel submitted that the interests of Mr Mehta’s spouse and unborn child could be characterised as relevant considerations.

32    In that regard Mr Mehta relied on Misiura v Minister for Immigration and Multicultural Affairs [2001] FCA 133 at [18] (Madgwick J) where his Honour held that in exercising the discretion under s 501(2) there is a requirement that there be genuine weighting of relevant factors and said that “[a]mongst the pre-eminent, plainly relevant factors, binding directions or no, is the extent of hardship for the visa holder and for members of his or her family”.

33    Mr Mehta argued that in cases where children are involved, their best interests are a primary consideration for the Minister to consider when exercising his or her personal powers and that a failure to give proper, genuine and realistic consideration to such best interests may amount to jurisdictional error. He contended that it is a short step from the notion that the best interests of children is a primary consideration to conclude that the interests of the visa holder’s spouse and unborn child are a mandatory consideration.

34    In the event that the Court accepted that Huynh stood for the broader proposition that it is impermissible for the Court to imply an obligation on the Minister’s part to consider specific factors personal to the visa holder, Mr Mehta submitted that the decision of the majority in Huynh is wrong and should not be followed.

35    Mr Mehta argued that his contention regarding the proper approach to s 501 received tacit approval in the recent Full Court decision of Gbojueh v Minister for Immigration and Citizenship [2015] FCAFC 43 (Allsop CJ, Kenny and Wigney JJ) (“Gbojueh”). I do not accept this. The Court in Gbojueh (at [15]) declined to deal with the argument that the majority in Hunyh were wrong in their construction of s 501 and dismissed the appeal on other grounds.

36    The question as to whether, by reference to the subject-matter, scope and purpose of the Act, it is appropriate to imply that it is mandatory for the Minister, when considering cancellation of a visa, to take into account the personal circumstances of the visa holder has led to divergences of opinion between single judges of the Court and sometimes at an appellate level: see Gbojueh v Minister for Immigration and Citizenship (2012) 202 FCR 417; [2012] FCA 288 at [58] (Bromberg J); Coderre v Minister for Immigration and Border Protection (2014) 143 ALD 675; [2014] FCA 769 at [30]-[32] (Besanko J); MZAGK v Minister for Immigration and Border Protection (2014) 226 FCR 311; [2014] FCA 1190 at [34]-[35] (Tracey J); Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 at [22] (“Fraser”) (Perram J); Tanielu at [120]-[122] (Mortimer J); Moana (Jessup J).

37    These divergences of opinion have usually arisen in relation to whether risk of harm to the Australian community is a mandatory relevant consideration in the exercise of the visa cancellation power, and, if so, whether factors personal to the visa holder are required to be considered in assessing such a risk.

38    This question was recently dealt with by a Full Court in Moana. In this case Rangiah J (with North J agreeing) held that:

(a)    Nystrom must be considered in the context of the issues considered in that case, namely whether, when deciding to cancel a visa, the Minister was bound to take into account the nature of another substantive visa that would be cancelled as a statutory consequence of that decision. Nystrom cannot be taken as intended to foreclose acceptance of all possible arguments that there is a particular consideration that the Minister is bound to take into account (at [65]);

(b)    having regard to the subject-matter, scope and purpose of the Act, the risk to the Australian community posed by the continued presence of the visa holder in Australia is a consideration that the Minister is bound to take into account in the exercise of the discretion to cancel a visa under s 501(2) (at [48]). This is because the Minister’s consideration of the character test necessarily informs his consideration of the discretion (at[49]);

(c)    it is one thing to conclude that the Minister must consider the risk of harm, but it is a step removed to decide that the statute contains an implication that the Minister must evaluate the risk of harm in a particular way (at [71]-[72]); and

(d)    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 (at [74]).

39    Another Full Court in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 (“Ayoub”) (at [36]) (Flick, Griffiths and Perry JJ) left open the question as to whether the risk of harm to the community was a mandatory relevant consideration in the exercise of the discretion, and referred to an unresolved tension between the views of the majority in Moana and the majority in Huynh. As Flick J explained in Berryman v Minister for Immigration and Border Protection [2015] FCA 616 at [20], the tension arises, at least in part, from the requirement to take into account the risk to the Australian community (Moana) but the absence of any requirement to take into account comments made by a sentencing judge (i.e. relating to factors personal to the visa holder who poses the risk) (Huynh). In Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132 (Allsop CJ, Flick and Griffiths JJ) another Full Court referred to this tension but decided it was unnecessary to resolve in that matter.

40    There is no occasion for me to deal with this tension in the present case, as the issue does not arise. Mr Mehta did not contend that the Minister failed to take into account the risk of harm that he posed to the Australian community or that the Minister failed to give proper consideration to that matter.

41    I consider I am bound, by Huynh, Nystrom and Moana, to reject the argument that it is mandatory for the Minister to consider a visa holder’s spousal relationship and unborn child when exercising his discretion to cancel a visa under s 501(2). The majority in Huynh, approved in Nystrom, said that it was not possible to imply an obligation on the Minister’s part to consider specific factors personal to the visa holder. Even if I accepted the contention that those cases should be confined to their own facts, in Moana the majority said at [73]:

…there is direct authority against the proposition that the Minister is bound to consider factors personal to the visa holder: Huynh at [74] per Kiefel and Bennett JJ. It is difficult to see how s 501(2) can be construed as requiring the Minister to take into account personal factors when considering the risk of harm.

42    It must be kept in mind that protection of the community is central in the visa cancellation power. In my view it is one thing to argue that the subject-matter, scope and purpose of the Minister’s power to cancel a visa give rise to an implied obligation on the Minister to consider the risk of harm to the community, but another thing to make that argument not in relation to risk of harm but in relation to the interests of a visa holder’s spousal relationship and unborn child. As counsel for Mr Mehta conceded, construing s 501 as containing the implication that it is mandatory for the Minister to consider a visa holder’s spousal relationship and unborn child is more difficult than implying such an obligation in relation to risk of harm to the community.

43    In my view the statement of the majority in Moana (at [73]) - that it is difficult to see how s 501(2) can be construed as requiring the Minister to take account of factors personal to the visa holder relevant to the risk of harm to the community - tells against a construction requiring the Minister to take account of factors personal to the visa holder that are unrelated to the risk of harm.

44    Nor do I accept Mr Mehta’s alternative submission that, if Huynh is accepted as meaning that the Minister is not required to consider factors personal to a visa holder, that it leaves open that the Minister may have an obligation to consider factors personal to others such as a visa holder’s spouse and unborn child. I do not accept that the reference in Huynh to “specific factors, personal to the applicant” should be treated as confined to a visa holder and not to include his or her family members. Even if it were possible to separate out the personal factors of a visa holder from the personal factors of a visa holder’s spouse and unborn child, when the majority in Moana considered that s 501(2) should not be construed as requiring the Minister to take into account personal factors of a visa holder, I do not accept that it can be construed as requiring that the Minister consider personal factors one step further removed from a visa holder.

The Minister’s consideration of Mr Mehta’s spousal relationship and unborn child

45    Having decided that it was not mandatory for the Minister to consider the interests of Mr Mehta’s spousal relationship and unborn child, it might be seen as unnecessary to decide whether the Minister gave proper consideration to that question. However, the Minister referred to Mr Mehta’s relationship with Ms Digilova and to the fact that she was pregnant with Mr Mehta’s child in his Statement of Reasons. Mr Mehta submitted that, having raised the matter of his spousal relationship and unborn child as a consideration, the Minister was then required to give it proper or genuine consideration in a manner that was “more than merely formulaic”: Fraser at [22] (Perram J); NBMZ at 7-8 [26] (Allsop CJ and Katzmann J).

46    Mr Mehta relied on the judgments of Wilcox J in Huynh and Mortimer J in Tanielu. In Huynh Wilcox J said at 517-518 [46]:

However, although it is for a decision-maker to determine, in the absence of expressed or implied statutory criteria, what matters he or she proposes to regard as relevant to the making of a particular administrative decision, it seems to me, as a matter of principle, that once the decision-maker selects a particular matter for consideration, he or she is bound to consider that matter properly. Although the relevance of that matter would arise, in that situation, from the decision-maker’s selection, rather than the command of the statute, the principle enunciated by Mason J in Peko-Wallsend at 44 would apply. His Honour said:

Once it is accepted that the subject-matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister’s discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand … It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.

(Emphasis in Huynh.)

47    In Tanielu (at [158]) Mortimer J said:

Even if I am wrong and risk of harm to the Australian community is not a relevant consideration conditioning the exercise of the s 501(2) power, it is apparent on his reasons (and by the adoption of the approach in his own ministerial Direction) that the Minister chose to make the risk of harm to the Australian community his principal consideration. He chose also to hinge his decision whether to cancel the applicant’s visa on whether that risk was “unacceptable”. Having done so, the Minister was required to adopt an approach to assessing that risk of harm which accorded with the way Australian law requires risk of future harm or offending to be assessed: namely by examining the seriousness of any future harm as well as the likelihood of it occurring. The Minister did not undertake this approach and his decision was without jurisdiction for that reason.

48    The Minister argued that Wilcox J was in dissent on this issue in Huynh and relied on the statements of the majority (at [71] and [80]):

A relevant consideration in an administrative law sense has a limited meaning. It is one which the decision-maker is bound to take into account in making the decision in question. The factors which the decision-maker is bound to take into account are determined by the construction of the statute conferring the discretion. If they are not stated, they are to be determined by implication from the subject matter, scope and purpose of the Act.

…

The factor being considered, to which the material is relevant, must be essential to the exercise of the discretion before any obligation to examine the most recent and accurate information can arise. That is to say it must partake of the nature of a relevant consideration in the sense we have discussed… a consideration of remarks upon sentencing could not be said to be essential to the Minister’s exercise of discretion. The fact that he chooses to refer to them does not convert them to relevant considerations in the administrative law sense from which other consequences might flow. That is determined by reference to the statute.

49    In my view, Mr Mehta’s reliance on Tanielu is misplaced because the circumstances of the present case are quite different to those in Tanielu. In that case Mortimer J found that the Minister’s principal consideration was the risk of harm to the Australian community, and that the Minister had chosen to hinge his decision on whether that risk was “unacceptable”. In those circumstances her Honour considered the Minister failed to consider the risk of harm to the Australian community in the way Australian law required. In the present case, while the Minister referred to Mr Mehta’s spousal relationship and unborn child, those matters were far from the Minister’s principal consideration. The Minister’s decision centred on the likelihood of harm to the Australian community.

50    Further, even if I accepted Mr Mehta’s contention, I am not satisfied that the Minister failed to give proper consideration to Mr Mehta’s spousal relationship and unborn child.

51    In NBMZ at [16] Allsop CJ and Katzmann J set out well-established principles concerning the approach to what is and what is not said in a statement of reasons:

…[T]he written reasons of the Minister may, and generally will (subject to a contrary finding of fact), be taken to be a statement of those matters adverted to, considered and taken into account; and if something is not mentioned, it may be inferred that it has not been adverted to, considered or taken into account: Acts Interpretation Act 1901 (Cth), s 25D, s 501G of the Act and Minister for Immigration and Multicultural Affairs v Yusuf  [2001] HCA 30; 206 CLR 323 at [5], [37], [69], [89] and [133].

52    In Ayoub at [45]-[48] the Full Court said:

[45] Reasons may be expressed differently by different Ministers. To the extent that be relevant, which may be doubted, a Minister may see fit to characterise a particular risk as “serious”: eg, Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 at [17]–[20]. And some Ministers may see fit to try and effect some form of assessment by reference to the nature of the criminal conduct which gives rise to the exercise of the power conferred by s 501(2) and (6)(a) of the Migration Act by reference to the risk that re-offending may pose to the Australian community. In some cases a failure on the part of a Minister to do more than simply refer to there being a “risk” may evidence a failure properly to take that factor into account. A mere reference in passing to the prospect of there being a “risk” may not be sufficient for a conclusion to be reached on an application for judicial review that that factor was properly taken into account, assuming that there was a legal duty to take the factor into account.

[46] Mere advertence to a matter required to be taken into consideration may not be sufficient to establish that it has been properly considered: cf. Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113 at [100]; (2011) 179 LGERA 458 at 478 per Cowdroy J. The serious consequences confronted by an individual who has had a visa cancelled pursuant to s 501 may well require, in an appropriate case, such a conclusion being reached. Even a ritualistic incantation of a risk being, for example, an “unacceptable risk“ or a “grave and serious risk”, may not be sufficient to clothe a statement of reasons with impunity.

[47] The reasons provided in every case must each be considered by reference to the facts of each particular case and must all be construed in a practical and common-sense manner and not with “an eye keenly attuned to the perception of error”: cf. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271–272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

[48] In the present case, it is concluded that the Minister properly addressed the factor of “risk” and properly took it into account in the context of the other matters set forth in his reasons. He was not required to do more.

53    The thrust of Mr Mehta's contention is that it was insufficient for the Minister merely to note that Mr Mehta had been in a spousal relationship with Ms Digilova since 2007 and that he had been accepted by her family, including as the father of her child. He argued that was particularly so when he had filed extensive material which indicated that, due to her ties to her widowed mother, Ms Digilova would not leave Australia with Mr Mehta if his visa was cancelled, and that cancellation would have a significant impact on Ms Digilova as she would be required to raise their child without him.

54    Putting to one side the issue as to whether the Minister was required to give consideration to this issue, in deciding whether the Minister gave proper consideration to Mr Mehta’s spousal relationship and unborn child it is first necessary to understand the information Mr Mehta submitted to the Minister and the significance Mr Mehta gave to it.

55    On 12 May 2014 Mr Mehta’s solicitors informed the Minister that Ms Digilova was expecting his child, and submitted that information was “clearly relevant” to the Minister’s pending decision. The solicitors said that:

The effect on Anna, Amit’s Australian partner, should Amit’s visa be cancelled, would be considerable. For this couple to be separated during Anna’s pregnancy and into the indefinite future would be distressing and traumatic for Anna, who hopes to rely on Amit as her partner for emotional, pragmatic and financial support well into the future.

56    Overall, in my view Mr Mehta’s submissions were aimed at the impact on Mr Mehta’s spousal relationship and on Ms Digilova of a decision to cancel Mr Mehta’s visa. This can be seen in the Department’s submissions to the Minister (set out at [14]-[15] above) which endeavoured to capture the essence of the matters Mr Mehta put forward. At no point did Mr Mehta state that cancellation of his visa would have a significant impact on Ms Digilova because she would be required to raise their child without him, or draw the Minister’s attention to anything about the particular interests of the unborn child that the Minister should consider. Similarly, while Ms Digilova said that if Mr Mehta’s visa was cancelled she would not accompany him back to India she did not state that she would have to raise her soon to be born child alone or draw the Minister's attention to anything about the likely effect of that on her or the child. In my view the thrust of Mr Mehta's submission was that the matter weighing against cancellation of his visa was the effect of such a decision on Ms Digilova and her wider family, rather than any difficulty she would have in raising the child or the interests of the child.

57    When the Minister gave consideration to this matter he responded to the information provided and the submissions advanced on Mr Mehta’s behalf. As I set out at [17]:

(a)    under the heading “Ties to Australia” the Minister noted that Mr Mehta had been in a spousal relationship with Ms Digilova since 2007 and that it appeared that he had been accepted into their family;

(b)    under the heading “Other Considerations” the Minister noted:

(i)    that Mr Mehta had been in a spousal relationship with Ms Digilova since 2007 and that it appeared that he had been accepted into their family, including as the father of her child;

(ii)    the submission that Ms Digilova hoped to rely upon Mr Mehta as her partner for emotional, pragmatic and financial support well into the future;

(iii)    the statement of Ms Digilova’s mother that “it would hurt our family deeply” if Mr Mehta’s visa was cancelled;

(iv)    Ms Digilova’s statement that she would not accompany Mr Mehta to India if he was deported because she could not leave her mother, who was emotionally fragile and vulnerable; and

(v)    Ms Digilova’s statement that Mr Mehta’s removal from Australia would result in Ms Digilova and her family experiencing emotional hardship.

58    The Minister then said that he had considered “all relevant matters” and “all other evidence available to me, including evidence provided by, or on behalf of, Mr Mehta.” He said:

In reaching my decision I concluded that Mr Mehta represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations including his spousal relationship.

(Emphasis added.)

59    While the Minister did not expressly consider whether an effect of a decision to cancel Mr Mehta’s visa might be that Ms Digilova was required to raise their child without Mr Mehta’s assistance, his not doing so must be seen in light of the fact that Mr Mehta did not make that submission. I would have no difficulty accepting that Mr Mehta being returned to India and thereby being separated from Ms Digilova is likely to have, or is at least capable of having, a detrimental effect on her and her soon to be born child. However, it was a matter for Mr Mehta and his solicitors to provide information and make submissions identifying any such detrimental effect. Not having done so it is hard to see the Minister’s light attention to that issue as indicating jurisdictional error on his part. The Minister was not under any free standing duty to make further enquiries: see Fraser v Minister for Immigration and Border Protection (2015) 145 ALD 337; [2015] FCAFC 48 at [17] (Kenny, Buchanan and Rangiah JJ). It is likely that the Minister’s light treatment of the issue reflected the weight he gave it in the exercise of his discretion, and the weight to be given to it was a matter for him: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (Mason J).

60    Mr Mehta also contended that the Minister’s consideration of his spousal relationship and unborn child was “merely formulaic” (Fraser at [22] (Perram J)). In my view Mr Mehta’s real complaint is that the Minister did not give enough weight to the possible detrimental effect on his spousal relationship and unborn child. Again, Mr Mehta’s submissions did not specify or even refer to any detrimental effects on Ms Digilova from having to raise the child alone or any detrimental effects on the child.

61    In my view, on a fair reading of the Statement of Reasons the Minister properly addressed the information and submissions made on Mr Mehta’s behalf and properly exercised his discretion by reference to those matters. The Minister considered the effects of visa cancellation on Mr Mehta’s spousal relationship, Ms Digilova, and her family (including her unborn child) but decided that the risk of harm to the Australian community outweighed those matters.

62    I can discern no jurisdictional error in the Minister’s decision.

CONCLUSION

63    The application is dismissed and the applicant must pay the respondent’s costs.

Associate:

Dated:    14 October 2015