FEDERAL COURT OF AUSTRALIA
Maxwell v Minister for Immigration and Border Protection [2016] FCA 47
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application is dismissed.
2. The applicant is to pay the respondent’s costs as agreed in the sum of $6,439.00.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
PERRY J:
1 The applicant, Raymond Wilson Maxwell, is a citizen of the United Kingdom born in 1961. He was four years of age when he arrived in Australia with his parents and eight siblings.
2 The applicant’s Class BB Return (Residence) Subclass 155 (Five Year Resident Return) visa (the applicant’s visa) was cancelled on 22 May 2015 by the Assistant Minister for Immigration and Border Protection (the Minister) under s 501(2) of the Migration Act 1958 (Cth) (the Act) in the exercise of discretion, the Minister having found that the applicant did not pass the character test due to his substantial criminal record (the cancellation decision). The applicant had been convicted of a number of criminal offences, the most serious being two counts of rape and assault occasioning actual bodily harm for which he was sentenced in 1995 to imprisonment for seven years by Nyland J in the Supreme Court of South Australia (the 1995 conviction).
3 On 26 June 2015, the applicant applied for judicial review of the cancellation decision under s 476A of the Act. Four grounds were raised by the originating application as filed, which may be summarised as follows:
(1) the Minister did not consider the evidence and supporting material independently but merely adopted the views expressed by the Department of Immigration and Border Protection (the Department) and did not, therefore, exercise her discretion personally (ground 1);
(2) the Minister failed to apply the correct tests in considering risk of harm, rehabilitation and expectations of the Australian community by equating minor and summary offences postdating the 1995 conviction with more serious offences (ground 2);
(3) the Minister failed to give due consideration and appropriate weight to the evidence as to the applicant’s rehabilitation and ties to Australia (ground 3); and
(4) the Minister failed to afford the applicant procedural fairness by not providing the applicant an opportunity to respond to evidence relied on to his detriment (ground 4).
4 In addition, at the hearing of the application the applicant applied orally for leave to amend his originating application to add a fifth ground that the Minister “made a decision based upon no evidence”:
5.1 that the [a]pplicant would have access to health and welfare services on his return;
5.2 did not consider the extent of any support available as a realistic expectation upon arrival in the United Kingdom, particularly with respect to housing; and
accordingly fell into jurisdictional error based upon a failure to make a decision according to evidence.
5 For the reasons set out below, grounds 1 to 4 of the application must be rejected. Furthermore, while I would grant leave to amend the notice of application to add the fifth ground, I also reject that ground. Accordingly, the application must be dismissed.
2.1.1 Notice of intention to consider cancellation and the applicant’s response
6 On 14 November 2014, an officer of the Department wrote a letter to the applicant giving notice of an intention to consider cancellation of the applicant’s visa under s 501(2) of the Act. That letter stated that:
[The Department] holds information about your criminal history (listed on page 3 of this letter), which indicates that you have a substantial criminal record within the meaning of subsection 501(7) of the Act, and that as a result you do not pass the character test as defined by subsection 501(6) of the Act.
7 The letter explained that, before the decision-maker considered whether to cancel the applicant’s visa, the applicant had an opportunity to comment or provide information on whether he passed the character test and on whether the discretion should be exercised to cancel his visa. While advising that the applicant was not obliged to respond to the notice or give the Department further information, the letter also stated that if he did not respond, a decision may be made on the basis of the information the Department already held without further notice to the applicant. Enclosed with the letter were certain documents, some of which were contained in a list described as consisting of “information that is held by the [D]epartment, which the decision-maker may rely on to decide whether you pass the character test; and if not whether your visa should be cancelled”. That list included, among other things, a copy of Direction No. 55 – Visa Refusal and Cancellation under s 501 (Direction 55), information about the applicant’s criminal history, and an Incoming Passenger Card dated 14 June 2014. The enclosed Incoming Passenger Card records that the applicant answered “No” in response to the question “If you are NOT an Australian citizen: … Do you have any criminal convictions?”
8 The applicant responded to the letter with a submission prepared with the assistance of the Legal Services Commission of South Australia dated 11 December 2014, together with various certificates of achievement and letters of support from friends and family members (the applicant’s submission). While the submission stated that the applicant maintained his innocence with respect to the 1995 conviction, it was conceded in the submission that his offending amounted to a substantial criminal record. On the question of discretion, the applicant’s submission emphasised his longstanding residence in, and strong family and community ties to, Australia and the absence of any further serious criminal convictions since the 1995 conviction, and alleged that there was no risk to the Australian community of repeated offending posed by the applicant. The submission did not, however, include any response to the statement on the Incoming Passenger Card.
9 On 2 February 2015, an officer from the Department again wrote to the applicant enclosing an updated National Police Certificate and a copy of Direction No. 65 – Visa Refusal and Cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65), which had replaced Direction 55. The letter explained that in those cases where a delegate of the Minister was the decision-maker, she or he must follow Direction 65, although that was not the case where the Minister made the decision personally. As to the latter, the letter explained the Minister was not required to give consideration to Direction 65, although it provided a broad indication of the types of issues that she or he may take into account.
10 On 16 April 2015, the applicant confirmed to a case officer from the Department that he had nothing further to provide to the Minister and had already provided the information he wished to be considered.
2.1.2 The cancellation decision
11 At the time of the cancellation decision, s 501(2) of the Act provided that 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.
12 Subsection 501(6)(a) provided that a person did not pass the character test where, among other things, the person had a substantial criminal record as defined by s 501(7). A substantial criminal record was defined by s 501(7) to include where a person had been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)), or to two or more terms of imprisonment which cumulatively total 12 months or more (s 501(7)(d)).
13 As earlier explained, the applicant’s visa was cancelled by the Minister personally under s 501(2) of the Act on 22 May 2015. The Minister’s statement of reasons (the Minister’s reasons) was attached to the cancellation decision and bears the same date.
14 The cancellation decision is recorded at the end of a detailed submission dated 15 May 2015 which was prepared by a Departmental officer for the Minister’s consideration in deciding whether to cancel the applicant’s visa (the issues paper). The issues paper attached all of the material sent for comment to, and received from, the applicant or submitted on his behalf, including the Incoming Passenger Card, the sentencing remarks in relation to the 1995 conviction and the applicant’s submission, together with a copy of Direction 65. The issues paper also summarised much of that material having regard to the considerations identified in Direction 65. However, as later explained, the applicant complains that the issues paper also contained value judgments which gave undue emphasis to factors in favour of cancellation.
15 In her statement of reasons, the Minister found that, as a result of the imposition of the sentence of seven years imprisonment, the applicant had a substantial criminal record as defined in s 501(7) and did not pass the character test by virtue of s 501(6)(a). The Minister’s discretion under s 501(2) of the Act was therefore enlivened.
16 Under the heading “Discretion”, the Minister stated that she “considered whether to exercise …[her] discretion to cancel Mr MAXWELL’s visa, taking into account factors that …[she] considered weighed against and in favour of cancelling Mr Maxwell’s visa”. The Minister also there explained that in making her decision, she was mindful that Australia had a sovereign right to determine whether non-citizens who were of character concern were allowed to remain in Australia (Minister’s reasons at [7]). The Minister then addressed the various factors below which may be summarised as follows (adopting the Minister’s subheadings):
(1) Criminal conduct:- The Minister found that the two counts of rape and assault occasioning bodily harm for which the applicant was convicted in 1995 were very serious as was reflected in the length of imprisonment, and that the ongoing impact on the victim as detailed in the sentencing remarks added to the seriousness. She also had regard to the applicant’s other violent offending in Australia finding that his offences against police officers were serious, as were his offences involving social security fraud for which he was sentenced in late 1994. She found with respect to the applicant’s offending before and after the 1995 conviction that:
15. I consider that Mr MAXWELL is a repeat offender and has a history of violent and sexual-related offending. His violent offending commenced in 1980 and increased in severity until his offences in 1995 of rape and assault occasioning actual bodily harm. I note that Mr MAXWELL has offended whilst on a suspended sentence and received sentences of imprisonment for offences including destroy or damage property, larceny, breaching suspended sentence, assaulting police, assault occasioning actual bodily harm, social security offences and rape.
16. Mr MAXWELL’s criminal history indicates that his offending has not involved violence since 1995 and that between 2004 and 2011 his offending has consisted of traffic-related and street offences, such as hindering police. I do not consider, as contended, that Mr MAXWELL’s 2011 drink driving offence is ‘minor’ given the potential risk to public safety caused by such offending. I have ongoing concerns, that Mr MAXWELL’s more recent street offending constitutes a continuation of his very long history of offences, which demonstrates an ongoing disrespect for authority.
(Emphasis in the original.)
(2) Risk to the Australian community:- With respect to the risk to the Australian community, the Minister noted the circumstances leading to the social security offences and offences of which he was convicted in 1995, his long history of offending, his steps towards rehabilitation but continued offending after rehabilitation courses, his failure to accept responsibility for past conduct, and the support which he would have in the community from his family and networks which may aid in his rehabilitation. She concluded on this issue that:
26. In light of all of the material, I find that Mr MAXWELL has made some progress to rehabilitation. However given his offending, albeit less serious offending, after undertaking rehabilitation courses, when considered with his denial of committing very serious rape and assault offences, I have ongoing concerns about the extent of his rehabilitation. I do however note his last conviction was in November 2011, some four years ago. Notwithstanding, his failure to accept responsibility for committing very serious offences demonstrates a lack of remorse and lack of insight into his offending conduct. His recent failure to declare his convictions on his incoming passenger card is a further indication of his ongoing disrespect for authority.
27. In relation to Mr MAXWELL’s risk of reoffending in a violent or sexual manner, especially given the period of time since this offending, I consider that the risk is low. However if Mr MAXWELL did re-offend in a similar manner it could result in conduct that could cause great harm, including psychological and physical harm to a member of the Australian community.
(3) Best interests of minor children:- The Minister gave primary consideration to the best interests of any children less than 18 years of age whose best interests were affected by the cancellation decision. The Minister found that it would be in the best interests of the grandchildren of the applicant’s de facto partner, who were aged five and two, for the applicant’s visa not to be cancelled so they could maintain an ongoing relationship with him. However, the Minister found that any adverse effect on them would be minimal as they received care from their parents. The Minister reached the same view with respect to any minor children among the applicant’s eighty-one nieces or nephews in Australia.
(4) Expectations of the Australian community:- In making her decision, the Minister “was mindful of the principle that the Australian community would expect that non-citizens who commit serious crimes in Australia can and should have their visa cancelled.” Given the applicant’s conviction of several offences, including serious offences of a sexual and violent nature, the Minister found that the applicant had breached the trust of the Australian community and that it was appropriate to cancel the visa held “by such a person.” (Minister’s reasons at [34])
(5) Other considerations:- The Minister considered the applicant’s ties to Australia, including his significant family ties consisting of a de facto partner of a decade, two minor grandchildren, an adult daughter, elderly mother, nine siblings and extended family members, all of whom resided in Australia. The Minister accepted that those persons would experience emotional hardship or some distress, and in the case of his daughter and elderly mother, substantial emotional harm. The Minister also accepted that the applicant had contributed to the community through past employment and volunteer work, and had social and personal ties to Australia. The Minister also stated that she had regard to the applicant’s concerns about returning to the United Kingdom, given that he had no family or support there, and the concerns of the applicant’s family for his safety. While acknowledging the applicant’s health conditions, the Minister considered that the applicant would have access to health and welfare services on his return due to his status as a national of the United Kingdom. The Minister accepted that the applicant would suffer significant hardship given his family ties in Australia. The Minister also acknowledged that the applicant was likely to face difficulties in re-establishing himself in the United Kingdom without family support.
17 The Minister weighed these factors and concluded that:
48. Mr MAXWELL has committed very serious crimes, that of two counts of rape and assault occasioning bodily harm, which is of a violent and sexual nature, and attracted a term of imprisonment of seven years with a non-parole period of five years, and Mr MAXWELL should expect to forfeit the privilege of staying in Australia.
49. I find that the Australian community could be exposed to psychological and physical harm should Mr MAXWELL reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr MAXWELL. The Australian community should not tolerate any further risk of harm.
50. I found the above consideration outweighed the countervailing considerations in Mr MAXWELL's case, including the best interests of his grandchildren which I have treated as a primary consideration, impact on family members, his ties to Australia and the hardship he may face in the United Kingdom. I have also considered the length of time Mr MAXWELL has made a positive contribution to the Australian community through his past employment and involvement with the community. I considered the consequences of my decision for minor children, but also his partner, daughter and elderly mother.
51. I am cognisant that where great harm could be inflicted on the Australian community even strong countervailing considerations are insufficient for me not to cancel the visa. This is the case even applying a higher tolerance of risk of re-offending by Mr MAXWELL, than I otherwise would, because he has lived in Australia nearly all his life, some 50 years arriving as a young child aged four.
52. In reaching my decision I concluded that Mr MAXWELL represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.
53. Having given full consideration to all of these matters, I decided to exercise my discretion to cancel Mr MAXWELL's Class BB Return (Residence) Subclass 155 (Five Year Resident Return) visa under s 501(2) of the Migration Act.
3.1 Is the Assistant Minister “the Minister” for the purposes of the Act?
18 At the hearing, I raised a preliminary matter as to whether the Assistant Minister who made the decision in this case, Senator the Hon Michaelia Clare Cash, was “the Minister” for the purposes of the Act. The issue is an important one as, where the Minister makes a decision personally under s 501, she or he is not bound to apply Direction 65: see further at [39] below.
19 The Act refers to “the Minister” but does not define or specify which Minister. In such a case, s 19A of the Acts Interpretation Act 1901 (Cth) relevantly provides that:
(1) If a provision of an Act:
(aa) refers to a Minister by using the expression “the Minister” without specifying which Minister is referred to;…
then the reference is a reference to:
…
(b) if…for the time being, 2 or more Ministers administer the provision – any one of those Ministers;…
20 As the respondent submitted, the effect of s 19A is that the reference to “the Minister” in s 501 of the Act is a reference to the Minister or any one of the Ministers administering that provision.
21 Pursuant to ss 64 and 65 of the Constitution, on 18 September 2013 the Governor-General of the Commonwealth of Australia (the Governor-General) directed and appointed Senator the Hon Michaelia Clare Cash as a member of the Federal Executive Council to hold the office of Assistant Minister for Immigration and Border Protection and, relevantly, “to administer” the Department. In turn, on 23 December 2014, the Governor-General made an Administrative Arrangements Order (the AAO) which provided that the Ministers administering the Act were the Ministers administering the Department. Both the appointment and AAO were in force at the time that the cancellation decision in this case was made. It follows that I find that the Assistant Minister is “the Minister” for the purposes of the Act.
3.2 Ground 1: alleged failure to consider the evidence and supporting material independently or exercise personal discretion
3.2.1 The applicant’s submissions
22 Ground 1 as developed in written submissions had two interrelated aspects. First, it was said that the issues paper (described in the written submissions as a “draft opinion”) prepared by the Department for the Minister:
… did not simply summarise the evidence and facts, but contained value judgments of the departmental official that were merely adopted by the Minister. The use of open terminology such as “You are free to…” and the like did not ‘cure’ the existence of those value judgments because the tone which was conveyed in the draft opinion was overwhelmingly negative and repetitive of the negative facts, whilst improvements in favour of Mr Maxwell were routinely minimised. The tone was not that of an impartial collator of facts for consideration. And the information was not presented to the Minister in an unbiased manner.
23 It was submitted that the bias in the material presented to the Minister became more apparent when the issues paper and cancellation decision (with the accompanying Minister’s reasons) were considered together, it being said that the cancellation decision and Minister’s reasons were virtually indistinguishable from the issues paper. In short, it was submitted that the material presented to the Minister had a particular, and it must be inferred impermissible, slant.
24 Secondly, the applicant submitted that the similarity between the issues paper and the cancellation decision with the accompanying Minister’s reasons raised the question whether the Minister independently considered the evidence upon which the issues paper was drafted and independently exercised her decision-making power and discretion. In this regard, the applicant submitted that:
The [cancellation] decision was a simple reproduction of the draft opinion showing little or no independent approach by the Minister. It is apparent from the format of the draft opinion that the Minister needs only tick a box, or circle a decision to exercise discretion: this clearly indicates that the Minister had delegated the responsibility for consideration of the evidence instead of considering it personally. Simply, the Minister adopted wholly the text and view of the draft opinion. There was no independent input by the Minister in considering the evidence.
25 At the hearing, the applicant clarified that it was not intended by these submissions to make any allegation of apprehended bias or bad faith against the Minister. Nonetheless, I do not consider that either submission is well founded.
3.2.2 The submission as to the bias in the material before the Minister
26 As to the first submission in support of ground 1 and notwithstanding the careful submissions by counsel for the applicant, I do not consider that the premise of the argument is made out. The issues paper does not, on a fair reading, present the material in an “overwhelmingly negative” manner so as to suggest some bias on the part of the Department. For example, on the one hand the issues paper sets out the offences for which the applicant had been convicted, sentencing remarks with respect to the 1995 conviction and the convictions for social security fraud. On the other hand, the Department explained in the applicant’s favour that his offending had not involved violence since 1995 and that subsequent offending between 2004 and 2011 consisted of traffic-related and street offences, such as hindering police. Equally when addressing risk, the Department pointed on the one hand to circumstances such as the applicant’s difficult childhood, the decrease in the seriousness of his offending since his release from prison in 2000, the assistance which he may receive from employment in further rehabilitating himself, and evident support from family and friends, while also pointing on the other hand to factors which might raise concern over the extent of his rehabilitation. The issues paper also included a discussion of other factors in the applicant’s favour, including his significant family ties, the emotional hardship and distress which cancellation of his visa would cause the applicant’s family and extended family, and the applicant’s employment and voluntary work with the Australian Red Cross and Salvation Army. The Department suggested as a consequence of these factors that “[i]t is open to you to find that Mr MAXWELL has strong family, social and personal ties to Australia which he has forged through residing in Australia for nearly 50 years. It is also open to you to consider that he has contributed to the Australian community through his past employment and volunteer work.” Concerns as to the impact on the applicant’s mental health were also expressed in the issues paper. Finally, and again in the applicant’s favour, the issues paper concluded that:
It is open to [the Minister] to consider that Mr MAXWELL will suffer significant hardship should he return to the United Kingdom given he has lived in Australia for the majority of his life (nearly 50 years) and his substantial Australian ties. A number of Mr MAXWELL’s family members have written letters of support and it is open to [the Minister] to consider Mr MAXWELL is likely to suffer emotional hardship should he be separated from his family. … It is also open to [the Minister] to consider Mr MAXWELL is likely to face difficulties re-establishing himself without family support.
27 Overall, I consider that the issues paper appears in an unremarkable fashion to set out the factors for and against cancellation of the visa. As such, I reject the submission by counsel for the applicant that “the advocacy throughout the submission is actually negative on almost all points.” Equally I do not accept the submission that the Department failed to present the material “in an unbiased manner”.
28 Nor do I accept that the presentation of issues in the issues paper may accurately be described as “a persuasive tool of advocacy”, as was submitted by the applicant at the hearing. It is one thing to speak of an applicant who has an interest in the outcome seeking to persuade a decision-maker by advocacy to reach a particular outcome, as the applicant did through the submission made to the Department on his behalf (see [8] above). However, no recommendation is even made in the issues paper as to whether or not the applicant’s visa should be cancelled. Nor can any recommendation be inferred from the provision of a draft statement of reasons in support only of a decision to cancel, because it is only where a decision is made to cancel a visa that the obligation to give reasons arises (see s 501G(1)(e) of the Act).
29 Moreover, to describe the Department’s role as one of advocacy is, with respect, to mischaracterise the nature of that role. The Department’s role is to advise the Minister in accordance with, relevantly, s 10 of the Public Service Act 1999 (Cth) which sets out Australian Public Service (APS) values. In particular, s 10(5) obliges the APS to provide “the Government with advice that is frank, honest, timely and based on the best available evidence.” In my view, the issues paper and associated documents prepared by the Department do no more than this. The issues paper gives the Minister advice as to findings that might fairly be open to her on all of the evidence and makes it clear that it is for the Minister to reach her own view as to whether the character test is met and the discretion to cancel should be exercised. Thus, the cover letter for the issues paper contained four recommendations requiring the Minister’s response, two of which relevantly provided:
(2) If you wish to consider this case personally, indicate your decision and sign the Issues Paper at Attachment A; and
(3) If you exercise your power under s501(2) to cancel Mr MAXWELL’s visa, sign the draft Statement of Reasons at Attachment B with any amendments you consider necessary.
(Emphasis added.)
30 In turn, in the issues paper at Attachment A, the Minister was required to indicate which of the three alternative options she had accepted, namely that: (a) she was satisfied that the applicant passed the character test; (b) she reasonably suspected that the applicant did not pass the character test but had decided not to exercise her discretion to cancel the visa but rather to warn the applicant about his future conduct in relation to s 501 of the Act; or (c) she reasonably suspected that the applicant did not pass the character test but had decided to exercise her discretion to cancel the visa for the reasons set out in the attached statement of reasons. By so providing, it is apparent that the issues paper at Attachment A plainly left the decision on whether or not to cancel to the Minister.
3.2.3 The Minister’s adoption of the reasons
31 As to the second issue, it can be inferred from the evidence that the Minister adopted the draft reasons prepared by the Department: see by analogy in Javillonar v Minister for Immigration and Multicultural Affairs [2001] FCA 311; (2001) 114 FCR 311 (Javillonar). In those circumstances, the fact that the Minister’s reasons were not prepared by the Minister personally is not relevant: Javillonar at 317 [24]. In particular:
(1) The Department’s brief to the Minister contained all of the relevant material to the decision whether or not to cancel the applicant’s visa (see above at [14]).
(2) In making the cancellation decision, the Minister signed the following statement:
I have considered all relevant matters including an assessment of the character test as defined by s501(6) of the Migration Act 1958, and all evidence before me provided by, on behalf of, or in relation to Mr Raymond Wilson MAXWELL in connection with the possible cancellation of his Class BB Return (Residence) Subclass 155 (Five Year Resident Return) visa.
In so doing, the Minister confirmed that she had personally considered the issues paper and all of the material relied upon by the applicant. In any case, it can be inferred that the Minister considered all of the material before her: Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 (Ayoub) at 528 [49] (Flick, Griffiths and Perry JJ).
(3) The Minister made a decision consistent with the draft reasons prepared by the Department.
(4) By crossing-out the “non-cancellation outcomes” on the front page of the issues paper and signing the base of that page, the Minister expressed her intention to select the “Cancellation outcome” option which expressly adopted the draft reasons in stating that “[m]y reasons for this decision are set out in the attached Statement of Reasons” (emphasis added).
32 Accordingly, there is no evidence establishing otherwise than that the Minister made the decision personally in an independent exercise of her discretion.
3.3 Ground 2: alleged jurisdictional error by equating subsequent minor and summary offences with more serious offences
33 In ground 2, the applicant contends that the Minister failed to apply the correct tests in considering:
2.1 the risk of harm to the Australian community;
2.2 the substantial rehabilitation of the [a]pplicant; and
2.3 the expectations of the Australian Community;
by equating subsequent minor and summary offences with more serious (indictable) offences, and accordingly fell into jurisdictional error.
34 The applicant first challenges the finding by the Minister at [49] of her reasons that “the Australian community could be exposed to psychological and physical harm should Mr MAXWELL reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr Maxwell. The Australian community should not tolerate any further risk of harm” (emphasis added). As the applicant submits, it is clear from the preceding sentence that the Minister was concerned at [49] with the risk of the applicant committing very serious crimes of a violent and sexual nature such as those which were the subject of the 1995 convictions. However, the applicant submits that in reaching the view expressed at [49], the Minister failed to consider the applicant’s rehabilitation and the “remote” likelihood that he would commit another serious criminal offence, particularly given the 20 years since the applicant had committed an offence of a serious nature.
35 In the first place, I do not agree that the Minister failed to consider those matters. To the contrary, the Minister expressly took into account the steps taken by the applicant towards rehabilitation at [21] of her reasons and found that he had made some progress. However, other considerations such as his failure to accept full responsibility for past conduct, including for the 1995 conviction, and ongoing disrespect for authority led her to have concerns about the extent of his rehabilitation (at [26]). The Minister also accepted that the risk of the applicant reoffending in a violent or sexual manner was low having regard in particular to the time which had elapsed since the offences comprising the 1995 convictions took place (at [27]). This finding also demonstrates that the applicant’s submission that the Minister misconstrued the test by failing to consider the risk of committing a serious offence, cannot be accepted. Quite apart from other difficulties that submission may entail (see at [40] below), a clear finding is made by the Minister on the extent of the risk that further serious offences might be committed. In context therefore the finding at [49] that “[t]he Australian community should not tolerate any further risk of harm” should not be read as meaning “any further risk of harm” however remote, as the applicant’s submissions imply, but rather “any further risk of harm” notwithstanding that the risk is low.
36 Secondly, the applicant submitted at the hearing that the Minister’s decision that (in effect) “because the harm might be great if he does do it, we have to say no” was illogical in that it rejected weight of the evidence. However, in my view the submission falls short of establishing that the decision was irrational or illogical. In this regard, irrationality or illogicality sufficient to give rise to jurisdictional error is not merely an emphatic way of expressing disagreement with the decision, but rather means, as Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at 648 [130], that:
…the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65 [of the Act], is one at which no rational or logical decision maker could arrive on the same evidence… it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.
37 As their Honours then cautioned, “[n]ot every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case” (SZMDS at 648 [130]).
38 As I have already explained, the Minister expressed concerns based on rational grounds about the extent to which the applicant was rehabilitated and found that the harm which might be caused if he committed further sexual and violent offences posed an unacceptable risk in circumstances where that risk, while low, could not be ruled out. That factor in turn was found to outweigh the other considerations in the applicant’s favour. There is no illogicality in such reasoning; nor is the outcome “clearly unjust” or “capricious”. Rather, as Mortimer J held in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at 446 [103], “[i]t is well established that, where the harm which might be caused by future conduct is particularly serious, a lesser likelihood of the conduct occurring may be required for the risk to be identified at a level requiring a particular decision to be made”; see also Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; (2015) 230 FCR 367 at 383 [72] (Rangiah J).
39 Thirdly, as the letter to the applicant dated 2 February 2015 explained, when making the decision personally the Minister was not bound by Direction 65, being a direction made under s 499 of the Act: see NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 (NBMZ) at 4 [6] (Allsop CJ and Katzmann J). Contrary to the applicant’s submissions, therefore, it is for the Minister to determine those matters which she regards as relevant and the weight or importance to be afforded to those matters which are taken into account: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 (Deane J); Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 (Peko-Wallsend) at 41 (Mason J). Accordingly, while the Minister may consider the factors identified in Direction 65, that does not mean that she is bound to apply those principles appropriately and giving them appropriate weight, as the applicant contended. Nor, in light of the terms of the letter of 2 February 2015, could the adoption of those factors give rise to any “legitimate expectation”.
40 Finally, different views have been expressed by judges of this Court as to whether the risk of harm to the Australian community is a mandatory relevant consideration, even where the Minister makes the decision personally: see Ayoub at 522 [33] – 525 [39]. Nonetheless, even assuming that the Minister had a duty to consider that risk, she had no duty to evaluate it in any particular way or to ascribe any particular characterisation to the quality of the risk: Brown v Minister for Immigration and Border Protection [2015] FCAFC 141 at [41] (Rares, Flick and Perry JJ); Moana at 383 [71] (per Rangiah J); Ayoub at 527 [44]. It follows that the applicant’s submission that the Minister wrongly had regard to the potential of serious harm to result from the offences for which the applicant was convicted after the 1995 convictions in considering the seriousness of those offences, must be rejected. In other words, there is no statutory constraint on the way in which the Minister assesses risk, save that whatever she or he takes into account must be logical and rational. In particular, it follows that it was open for the Minister to reject as matter of fact the applicant’s characterisation of his 2011 drink driving offence as “minor”, to the extent that this was taken into account when assessing risk.
41 After the hearing by way of a supplementary written submission, the applicant drew the Court’s attention to Stretton v Minister for Immigration and Border Protection (No 2) [2015] FCA 559; (2015) 231 FCR 36 at 51 [40] -58 [62] (Stretton). The Applicant submitted this case was relevant to the manner of assessing risk with respect to an offender where prior offending complained of was ‘serious’ and the gravity of the effect of that offending was ‘serious’, but where the risk of re-offending was low. With respect, that decision takes the matter no further. The decision in Stretton does not (and could not) depart from the approach of the Full Court as to the assessment of risk to which I have referred. Rather, Stretton turned on the question of whether or not the Minister’s exercise of discretion was unreasonable in the sense described in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76], where Hayne, Kiefel and Bell JJ held that “[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”. That is a question which is fact specific and, in the present case, for the reasons given above I do not consider that the decision of the Minister lacked an evident and intelligible justification.
3.4 Ground 3: alleged failure to give consideration and appropriate weight to evidence regarding the applicant’s rehabilitation and ties to Australia
42 The applicant submitted that the Minister failed to give appropriate weight to steps taken by him towards rehabilitation and to the strength, nature and duration of his ties to Australia. In particular, the applicant contended that factors such as the passage of 20 years without committing any further serious offences, realistic expectations of rehabilitation and completion of anger and sexual offence courses, were not given sufficient weight. The applicant also submitted that too little weight was given to his entire family living in Australia and the fact he had no continuing ties to the United Kingdom. Furthermore, the applicant contended that too little weight was given to his contribution to Australia through employment and volunteer work, which were merely “glossed over” by the Minister.
43 However, I do not consider that the Minister’s reasons merely “glossed over” factors in applicant’s favour. Nor does the submission pay sufficient regard to the limits on this Court’s function of judicial review. As Mason J observed in Peko-Wallsend at 41:
… in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the Court to determine the appropriate weight to be given to matters which are required to be taken into account in exercising the statutory power.
44 That observation has been held to apply “with as much force to the weight to be attached by a decision-maker to matters which are relevant to, but not a mandatory consideration in, the decision-making process”: AZAFQ v Minister for Immigration and Border Protection [2015] FCA 681 at [45] (White J).
45 The applicant also contended that the Minister misconstrued the mandatory nature of those considerations, without indicating support for the proposition that these were in fact mandatory considerations. As I explained at [39] and leaving aside the question of risk, it was for the Minister to determine those factors which she considered relevant and the weight to be afforded to them.
46 The applicant also relied on Griffiths v Minister for Immigration [2003] FMCA 249; (2003) 176 FLR 272 in suggesting that the applicant should have been warned by the respondent that offending may result in visa cancellation. In particular, the applicant submitted that such a warning would have provided an opportunity for the applicant to respond by improving his behaviour. However, that decision was overturned by the Full Court of the Federal Court which held relevantly that “the Minister's decision to cancel the visa notwithstanding the absence of a warning about continued criminal conduct cannot attract the operation of the Wednesbury principle”: Minister for Immigration and Multicultural and Indigenous Affairs v Griffiths [2004] FCAFC 22 at [31] (Black CJ, Dowsett and Jacobson JJ).
47 In any case, as earlier explained, the applicant was given notice of an intention to consider cancellation of the visa under s 501(2) of the Act and afforded an opportunity to respond by the making of submissions and provision of evidence (see above at [6]-[7]). As such, in my view there is no substance in any contention that there was a failure to afford procedural fairness to the applicant. Nor, while it was open to the Minister to give the applicant a warning rather than to cancel, was there any obligation upon her under the Act to do so. In any event, it can be inferred that the Minister considered that possible course as she struck through that option on the front page of the issues paper which she also signed and dated: see at [31(4)] above.
3.5 Ground 4: alleged failure to afford the applicant procedural fairness by relying on evidence that was not put to the applicant
48 With respect to ground 4 of the application for judicial review, the applicant contended that the Minister relied on evidence to the applicant’s detriment without affording him an opportunity to respond. The detrimental evidence was identified by the applicant as:
(1) the Incoming Passenger Card dated 14 June 2014 including the alleged commission of an offence with respect to the Incoming Passenger Card; and
(2) the absence of a letter of support from the applicant’s daughter.
49 The failure to declare convictions on the Incoming Passenger Card was relied upon by the Minister as “a further indication of an ongoing disrespect for authority” (at [26] of the Minister’s reasons). As noted above at [7], the Incoming Passenger Card was identified in the letter dated 14 November 2014 to the applicant as information on which the decision-maker may rely to decide whether to cancel his visa. In my view, that afforded the applicant sufficient notice that the document may be used by the Minister against him in determining the cancellation decision. Notwithstanding the applicant’s submissions to the contrary, I do not consider that anything further was required in order to afford the applicant procedural fairness in the context of a notice of an intention to cancel by reason of the applicant’s substantial criminal record and the presence of an apparently false statement on the Incoming Passenger Card by him that he had not been convicted of any criminal offences.
50 The applicant also alleged that the Minister relied upon the absence of evidence from the applicant’s daughter to negatively assess his ties to Australia and family, without affording the applicant an opportunity to obtain supporting evidence from his daughter. However, the premise underlying the submission is not made out. In short, there is nothing in the Minister’s reasons that suggests that the absence of a letter of support from the applicant’s daughter impacted negatively on the cancellation decision. In fact, the Minister found that the applicant’s daughter “would suffer substantial emotional harm” if the applicant were returned to the United Kingdom. Furthermore, no issue was taken by the Minister in her reasons with the applicant’s submission that he had an ongoing relationship with his daughter.
3.6 Ground 5: decision based upon no evidence
51 Finally, the applicant contended that the Minister made a finding based upon no evidence when she concluded at [45] of her reasons that “as a national of the United Kingdom, Mr MAXWELL would have access to health and welfare services on his return, similar to that of [sic] Australia”, and further that the Minister’s finding “did not consider the extent of any social or economic support available as a realistic expectation upon arrival in the United Kingdom, particularly with respect to housing.” This issue arose in the course of oral argument and leave was sought to allow the applicant to amend to raise the issue. The only material before the Minister on this issue was the advice in the issues paper at [105], after referring to the applicant’s medical conditions:
However, as a national of the United Kingdom, Mr MAXWELL would have access to health and welfare services on his return.
52 In his submission to the Minister dated 11 December 2014, the applicant drew attention to medical treatments he was undergoing and to suffering various medical conditions, at least some of which were potentially serious. He did not, however, submit that there was a need for him to continue or obtain treatment for those conditions in Australia; nor did he submit that he would not have access to health care or welfare in the United Kingdom, if he were returned there.
53 I consider that it is appropriate to grant leave to amend the application to include ground 5. The only basis on which the Minister resists the application for leave is that the ground is futile since the Minister is entitled to rely upon the advice of the Department. However, that submission, with respect, overlooks the fact that the finding by the Minister went beyond the Department’s advice in the issues paper when she found that the health and welfare services would be “similar to that of [sic] Australia.” Nor was any material, apart from [105] of the issues paper, identified by the counsel for the Minister in support of the Minister’s finding at [45] of her reasons.
54 Nonetheless, I do not consider that the jurisdictional error alleged by ground 5 is established. It is not the case that the “no-evidence” ground is established by a mere insufficiency of evidence to support a finding, even if the evidence is slight: VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18]-[19] (Gray, Moore and Weinberg JJ). There must be no evidence at all on which the finding could have been based: ibid. As I explain below, there was some evidence to support the finding here. Secondly and in any event, a jurisdictional fact must be involved before a jurisdictional error based on the “no-evidence” ground can be established: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [39] (Gummow and Hayne JJ, with whose reasons Gleeson CJ agreed at [1]). As Madgwick J held in SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 (SZAPC) at [57] in summarising the effect of the High Court authorities: “[a] ‘no evidence’ attack will only suffice as such if it can be said that there is an actual ‘absence of any foundation in fact for the fulfilment of the conditions upon which, in law, the existence of a power depends’, that is, if there is no evidence to support a finding of a jurisdictional fact” (quoting Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [36]). Yet nothing in the Act makes the question of whether there is access to health and welfare services a precondition to the exercise of jurisdiction by the Minister to cancel a visa. Nonetheless, where a crucial finding to a decision has been made without any evidence, the question will arise as to whether, to that extent, the decision is irrational or illogical: SZAPC at [57]-[59] and [64]. However, in this case, it cannot be said that the finding was either crucial to the Minister’s decision or lacked any evidence. As to the former, it was but one of a number of factors which the Minister considered before concluding that there was an unacceptable risk of harm which outweighed the other factors in the applicant’s favour. As to the latter, I have already referred to the fact that the finding as to access to health and welfare services was based on advice from the Department contained in the issues paper (see [51] above). In my view, that suffices in this case. Whilst a somewhat flimsy basis, the assumption that those services were similar to those in Australia was open to be inferred by the Minister from the Department’s advice.
55 Finally, I note that insofar as the applicant’s supplementary submissions included submissions as to matters of fact, such as statistics as to the waiting list for housing in the United Kingdom, the applicant seeks to engage this Court in an impermissible consideration of the merits of the decision and accordingly I have not taken those submissions into account.
56 For the reasons set out above, the application must be dismissed with costs.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry . |
