FEDERAL COURT OF AUSTRALIA

BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs of the proceeding, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The applicant was born in China. He arrived in Australia in 1995, aged 32 years. He was granted a Protection (Class AZ, Subclass 866) visa followed by a series of Return (Residence) (Class BB, Subclass 155) (Five Year Resident Return) visas. Between 1996 and 2014, the applicant committed numerous offences. In May 2006, the applicant was convicted of assault occasioning actual bodily harm and sentenced to 12 months imprisonment, suspended on entering a 12 month good behaviour bond. However, he breached this bond in August 2006 and was arrested and remanded. Also in 2006, the applicant was convicted of two counts of drive while disqualified, for which he received concurrent terms of imprisonment of 12 months; and an offence of making a false statement in a licence application, in respect of which he was sentenced to 12 months imprisonment. In 2014, the applicant was convicted of embezzle as clerk or servant more than $2,000 and less than or equal to $5,000, and steal property as clerk/servant, and was sentenced to nine months imprisonment and six months imprisonment respectively.

2    On 17 March 2015, on the basis of his 2006 convictions and sentences and in circumstances where he was serving a sentence of imprisonment on a full-time basis for the 2014 offences, the applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) by a delegate of the respondent (the Minister). The decision to cancel the applicant’s visa will be referred to in these reasons as the cancellation decision.

3    The applicant was notified of the cancellation decision and invited to make representations to the Minister about revocation of that decision pursuant to s 501CA of the Migration Act. Section 501CA(4) provides that the Minister may revoke the cancellation decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied that the person passes the character test (as defined in s 501) or that “there is another reason why the [cancellation] decision should be revoked”.

4    The applicant provided representations to the Minister in accordance with s 501CA.

5    A departmental officer prepared an issues paper addressed to the Minister which set out issues for consideration in connection with the possible revocation under s 501CA of the cancellation decision (the Issues Paper). Attached to the Issues Paper were the applicant’s submissions and other relevant documents.

6    On 8 April 2016, the Minister decided not to revoke the decision to cancel the applicant’s visa (the Decision). The Minister was not satisfied that the applicant passed the character test (as defined in s 501). Nor was the Minister satisfied that there was another reason why the cancellation decision should be revoked. The Minister’s reasons were set out in a statement of reasons of the same date (the Statement of Reasons).

7    The applicant seeks judicial review of the Decision on the following grounds:

(a)    First, the applicant contends that the Minister failed to discharge his statutory task and/or that his decision was legally unreasonable in that:

(i)    the Minister failed to assess the likelihood of re-offending in circumstances where the nature of the offending was not such that it was open to find (and, in any event, the Minister made no such finding) that any risk of re-offending warranted cancellation; and/or

(ii)    the Minister failed, in assessing the likelihood and/or consequences of re-offending, to differentiate between the applicant’s (historical) violent offending and his (recent) dishonesty offences.

(b)    Secondly, the applicant contends that the Minister, in exercising his discretion, had regard to the punitive effect of visa cancellation, which was an irrelevant consideration.

8    For the reasons that follow, none of these grounds is made out. In summary, my reasons are as follows:

(a)    In relation to the first limb of the first ground, by parity of reasoning with cases concerning s 501(2), the Minister in exercising the power conferred by s 501CA(4) has no duty to evaluate the risk of harm to the Australian community in any particular way or to ascribe any particular characterisation to the quality of risk. In the present case, contrary to the applicant’s submissions, the Minister did assess the likelihood of re-offending by, in effect, finding there was a risk of re-offending. This was sufficient, in my view, to support a rational and logical reasoning process.

(b)    In relation to the second limb of the first ground, the applicant contends that the Minister based his decision on his assessment of the seriousness of the applicant’s historical violent offending and – to the extent that he assessed it at all – an assessment of the likelihood of re-offending based (at least substantially) on the applicant’s recent dishonesty offending; and that the Minister did not grapple with this disconnect. But it is apparent from the Statement of Reasons that the Minister assessed the more recent dishonesty offences as “serious”. Therefore, I do not think the Statement of Reasons suffers from the disconnect outlined in the applicant’s submissions.

(c)    In relation to the second ground, the applicant contends that the Minister, in having regard to “expectations of the Australian community”, in effect took into account as a consideration for non-revocation that the applicant deserved to be punished for his past offences, and this was an irrelevant consideration. However, I do not read the Statement of Reasons as reflecting a view (whether of the Minister or one attributed to the Australian community) that the applicant deserved to be (further) punished for his offences and that, for this reason, the cancellation decision ought not be revoked.

9    It follows that the application should be dismissed.

Key legislative provisions

10    Before detailing the facts, it is convenient to set out the key relevant provisions. Section 501 of the Migration Act relevantly provides:

(3A)     The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

11    That provision refers, relevantly for present purposes, to paragraphs (6)(a) and (7)(c) of s 501, which provide as follows:

(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));

…

(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.

12    I note also that s 501(7A) provides as follows:

Concurrent sentences

(7A)    For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.

Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.

13    Section 501CA provides:

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)    For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

(5)    If the Minister revokes the original decision, the original decision is taken not to have been made.

(6)    Any detention of the person that occurred during any part of the period:

(a)    beginning when the original decision was made; and

(b)    ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

(7)    A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.

Background facts

14    The following description of the facts is based on the Issues Paper and attachments.

15    The applicant was born in 1963 in China.

16    In July 1995, the applicant arrived in Australia on a business visitor short stay visa. In the same month, he applied for a protection visa. His application was refused and he applied to the Refugee Review Tribunal for review. The Tribunal remitted the matter to the Department in 1997 with a direction that the applicant was owed protection obligations. The applicant was granted a Protection (Class AZ, Subclass 866) visa in March 1997.

17    The applicant departed Australia in December 2000 and returned in September 2001. The applicant’s protection visa ceased in December 2003, and he was then granted a Return (Residence) (Class BB, Subclass 155) (Five Year Resident Return) visa. He was granted two further visas of this type in April 2009 and August 2014.

18    In October 1996, the applicant was convicted of stealing and fined $200.

19    In December 2002, the applicant was convicted of two charges of assault occasioning actual bodily harm and two charges of common assault and sentenced to four months and 15 days imprisonment and two months and 15 days imprisonment respectively. The applicant was also convicted of a series of other offences for which he was sentenced to periods of imprisonment (see Issues Paper, [113]).

20    In 2003, the applicant was sentenced to terms of imprisonment for drive vehicle recklessly and drive while disqualified. He was sentenced to six months imprisonment, suspended upon entering a six month bond on each charge.

21    In 2004, the applicant was convicted of drive vehicle recklessly and drive while disqualified and sentenced to 12 months imprisonment with a non-parole period of six months on each charge.

22    In March 2006, the Department sent a warning letter regarding future conduct. The applicant acknowledged receipt of this letter.

23    In May 2006, the applicant was convicted of assault occasioning actual bodily harm. This related to an incident of domestic violence against the applicant’s second wife, which occurred in January 2006. He was sentenced to 12 months imprisonment, suspended on entering a 12 month good behaviour bond. However, he breached this bond in August 2006 (drive while disqualified). He was arrested and remanded. In October 2006, he was called up and resentenced to 12 months imprisonment, with a non-parole period of nine months. He appealed this sentence and, in December 2006, was sentenced to 12 months imprisonment with a non-parole period of six months.

24    Also in 2006, the applicant was convicted of: (a) two counts of drive while disqualified, for which he received concurrent terms of imprisonment of 12 months with a non-parole period of nine months; and (b) an offence of making a false statement in a licence application, in respect of which he was sentenced to 12 months imprisonment with a non-parole period of nine months. The applicant appealed these sentences. His appeal in relation to these sentences was heard at the same time as his appeal in relation to the assault occasioning actual bodily harm referred to above. The appeal judge commented that the applicant’s criminal record disclosed a very large number of offences, involving violence and dishonesty, as well as traffic matters. The judge modified the non-parole periods to six months, based on the need for a longer than usual period of supervision to address the applicant’s mental health issues, in the form of bipolar disorder.

25    In November 2007, the Department sent the applicant a further warning letter regarding his future behaviour. The applicant claims he did not receive this.

26    The applicant’s national police certificate includes court outcomes for common assault in May 1998, April 2000 and October 2012. He received a fine, community service order and good behaviour bond respectively.

27    The applicant’s driving offences between 1998 and 2008 are detailed in the Issues Paper at [116].

28    In April 2014, the applicant was convicted of: (a) embezzle as clerk or servant more than $2,000 and less than or equal to $5,000, for which he was sentenced to nine months imprisonment with a non-parole period of six months; and (b) steal property as clerk/servant, for which he was sentenced to six months imprisonment. These offences related to an incident that occurred a year earlier, in April 2013. The applicant was employed to deliver meats to, and take payment from, restaurants and butchers. On 17 April 2003, he made deliveries and collected a total of $4,065. He was convicted of embezzling this money. The applicant’s employer had supplied him with a mobile phone for work purposes. He did not return the phone and was convicted of stealing it. The applicant appealed and on 20 November 2014 the District Court confirmed the sentences.

29    The Issues Paper notes that the applicant has mental health conditions. He has been diagnosed with major depression, bipolar disorder and has previously been admitted to a mental health facility.

30    The applicant is married to an Australian citizen and they have a ten-year old daughter who is also an Australian citizen. The applicant also has an adult son from his first marriage, and a step-son from his current marriage.

31    Prior to the applicant’s incarceration and subsequent detention, he was residing in the family unit and actively involved in his daughter’s life, providing practical, emotional and financial support.

32    The applicant’s wife has been diagnosed with cervical cancer.

33    On 17 March 2015, the cancellation decision was made. The applicant was notified of the decision (by a letter dated 16 March 2015 but presumably sent on or after 17 March 2015) and was invited to make representations about revoking the cancellation decision The letter enclosed a number of documents which contained information in the possession of the Department at the time the cancellation decision was made. The letter stated that, if the applicant made representations about revocation of the cancellation decision, then the enclosed information would be relevant information that would be taken into consideration when deciding whether or not to revoke.

34    The applicant responded to the notice with a completed Request for Revocation form containing his representations, received on 30 March 2015. The representations were made in the prescribed manner and within the prescribed time frame.

35    Between April 2015 and July 2015, the applicant provided further information to the Department.

36    In November 2015, the Department wrote to the applicant giving him notice of further information and invited him to comment. The applicant responded.

37    In December 2015, the Department wrote to the applicant giving him notice of further information and inviting him to comment. The applicant responded.

38    In February 2016, the Department again wrote to the applicant enclosing further information and inviting him to comment. The applicant responded.

39    The applicant’s representations were summarised in the Issues Paper at [47] as follows. The applicant submitted that the cancellation decision should be revoked for reasons including: the best interests of his minor daughter; the impact his wife, adult sons and minor daughter would face should his visa not be revoked; his visa was cancelled on an old conviction and he did not accept that he had a “substantial criminal record” and did not pass the character test; his remorse and rehabilitation; he poses a low risk of re-offending; his convictions are not serious; his mental health conditions contributed to his offending; he has health concerns that need to be addressed; his strong ties to Australia; his positive contributions to the community; and being owed international non-refoulement obligations.

The Issues Paper, Decision and Statement of Reasons

40    The Department then prepared the Issues Paper, which was addressed to the Minister and identified as its subject consideration of a decision under s 501CA of the Migration Act in relation to the applicant. The Issues Paper comprised 30 pages and attachments. The Issues Paper (at [19]-[34]) listed and attached all of the material provided by the applicant in support of his representations. It addressed (at [36]-[45]) the issue raised by s 501CA(4)(b)(i), namely whether the Minister would be satisfied that the person passes the character test (as defined by s 501). It was stated that it was open to the Minister to conclude that he was not satisfied that the applicant passed the character test. There is no issue raised in the proceeding about this aspect of the Issues Paper or the Minister’s decision in this regard.

41    The Issues Paper went on to consider the issue raised by s 501CA(4)(b)(ii), namely whether the Minister would be satisfied that there was another reason why the cancellation decision should be revoked.

42    The Issues Paper dealt with “expectations of the Australian community” at [62]-[65]. Starting with an extract from one of the applicant’s representations, to the effect that the business community with whom he dealt would want him to stay in Australia, the Issues Paper stated: “You may wish to consider Australian community expectations that non-citizens obey Australian laws while in Australia”. This section of the Issues Paper concluded (at [65]):

You are free to consider [the applicant’s] claim that the Australian community would expect his visa cancellation to be revoked due to his business contribution. However you are also free to consider that the Australian community would expect that [the applicant] as a non-citizen would obey Australian laws, and as he has breached that trust and been convicted of offences in Australia, it may be appropriate to not revoke the mandatory cancellation of his visa.

43    The next section of the Issues Paper dealt with international non-refoulement obligations. The paper noted that in February 2016 the Department completed an International Treaties Obligations Assessment in relation to the applicant, which concluded that Australia does not have any non-refoulement obligations to the applicant.

44    The balance of the Issues Paper addressed: the strength, nature and duration of the applicant’s ties to Australia; the extent of impediments the applicant would face if removed; and protection of the Australian community.

45    On 8 April 2016, the Minister signed a one-page document indicating his decision was not to revoke the cancellation decision. The Decision was expressed in the following terms:

[The applicant] has made representations about revocation of the visa cancelation decision in accordance with the invitation and I am not satisfied that [the applicant] passes the character test (as defined by section 501). Nor am I satisfied that there is another reason why the original decision should be revoked. Accordingly, I have decided not to revoke the decision to cancel [the applicant’s] Class BB Return (Residence) Subclass 155 (Five Year Resident Return) visa. My reasons for this decision are set out in the attached Statement of Reasons.

46    The Statement of Reasons, which was signed by the Minister on the same date, comprised 10 pages. After referring to the cancellation decision and the applicant’s representations, the Minister referred to the issue raised by s 501CA(4)(b)(i) and stated that he was not satisfied that the applicant passed the character test (as defined by s 501), with the result that s 501CA(4)(b)(i) was not met. The Minister went on to consider the issue raised by s 501CA(4)(b)(ii), namely whether there was another reason why the cancellation decision should be revoked. The Minister stated at [14] that he had “assessed all of the information set out in the Issues Paper and attachments and, in particular, had considered the applicant’s representations and the documents he submitted as to why the cancellation decision should be revoked.

47    The section of the Statement of Reasons dealing with s 501CA(4)(b)(ii) was arranged under the following headings:

    Best interests of minor children

    Expectations of the Australian community

    International non-refoulement obligations

    Strength, nature and duration of ties

    Extent of impediments if removed

    Protecting the Australian community

48    The section dealing with expectations of the Australian community (relevant to the applicant’s second ground of challenge to the Decision) was as follows:

21.    I have noted [the applicant’s] statements regarding the expectations of the Australian community and that he considers the community would like him to remain in relation to his import/export business.

22.    I find that the Australian community would expect non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or whether [sic] there is an unacceptable risk that they will breach this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. [The applicant] has breached this trust as he has been convicted of offences whilst in Australia, several of which involve violence.

23.    Given the serious nature of these offences, I conclude that the Australian community would expect that [the applicant] should not hold a visa.

49    The section dealing with protecting the Australian community was divided into two parts: first, a section headed, “Criminal conduct”; secondly, a section headed, “Risk to the Australian community”. The section dealing with criminal conduct commenced with the following paragraph:

51.    In considering the nature and seriousness of [the applicant’s] criminal offending I note that offences such as embezzlement and theft are serious and violent offences are very serious.

50    The Statement of Reasons described the applicant’s recent offending in 2014 at [53]-[54]. The Statement of Reasons then addressed the applicant’s offences involving violence at [55]-[61]. Next, the Minister referred to the applicant’s “long history of driving offences” at [62]-[63]. The section dealing with criminal conduct concluded with the following paragraph:

68.    I find that [the applicant’s] overall criminal history consists of both serious and lower level offending.

51    In the section dealing with risk to the Australian community, the Minister stated at [81]-[82]:

81.    I find that [the applicant] has demonstrated some remorse for his actions and that his mental health conditions and marriage breakdown were contributing factors to his offending. I consider [the applicant] has made some progress towards his rehabilitation, indicating he has completed numerous courses whilst incarcerated and receiving assistance and support from the prison psychologist. He also has support from family and friends. [The applicant] has also made a commitment to change and to stay out of trouble. However, I note [the applicant] previously made a similar statement but continued to offend. I consider that [the applicant] is a repeat offender and whilst after 2006, he did have a prolonged period of some six years of not offending, he nevertheless offended more recently in 2014 via dishonesty offences. In addition, various dispositions failed to deter [the applicant] from further offending, including fines, bonds and relatively short terms of imprisonment. Further, he has breached judicial orders and has displayed a disregard for the previous warnings about the possible consequences of further criminal offending in Australia. I note [the applicant’s] ability to refrain from further offending remains untested in the community.

82.    Therefore I find that [the applicant] poses an ongoing likelihood of reoffending. If [the applicant] did re-offend in a similar manner it could result in conduct that could cause financial, emotional and/or physical harm to a member of the Australian community.

52    The Minister set out his conclusions at [83]-[91] of the Statement of Reasons as follows:

83.    I considered all relevant matters including (1) an assessment of whether the person has made representations in accordance with the invitation for the purposes of s 501CA(4)(a); (2) an assessment of whether I am satisfied that the person passes the character test (as defined by section 501) for the purposes of s 501CA(4)(b)(i); (3) an assessment of whether I am satisfied that there is another reason why the original decision should be revoked for the purposes of s 501CA(4)(b)(ii); and (4) all information available to me, including information provided by, or on behalf of, [the applicant].

84.    I conclude [the applicant] has made representations in accordance with the invitation.

85.    I am not satisfied that [the applicant] passes the character test (as defined by section 501).

86.    In considering whether, in light of [the applicant’s] representations, I was satisfied that there is another reason why the original cancellation decision should be revoked, I gave primary consideration to the best interests of [the applicant’s] child and found that her best interests would be served by the revocation of the mandatory visa cancellation decision. However, for the reasons mentioned below, this consideration is outweighed by other considerations and I do not regard it to be ‘another reason’ why the cancellation should be revoked for the purposes of s 501CA(4)(b)(ii).

87.    In addition, I have considered the length of time (20 years) [the applicant] has made a positive contribution to the Australian community through his employment and business activities and the consequences of my decision for his other family members.

88.    On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the extended period of serious offending by [the applicant]. I am also mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia.

89.    Further, I find that the Australian community could be exposed to great harm should [the applicant] reoffend in a similar fashion. I could not rule out the possibility of further offending by [the applicant].

90.    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I conclude that [the applicant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his child, as a primary consideration, and any other considerations mentioned above that may have favoured revocation. These include his lengthy residence, his ties to Australia, his mental health conditions, his wife’s current medical condition and the hardship [the applicant], his family and social networks will endure in the event the original decision is not revoked.

91.    Having given full consideration to all of these matters, I am not satisfied, for the purposes of s 501CA(4)(b)(ii), that there is another reason why the original decision to cancel [the applicant’s] visa should be revoked. Accordingly, I have decided not to revoke the original decision to cancel [the applicant’s] Class BB Return (Residence) Subclass 155 (Five Year Resident Return) visa.

The application

53    The proceeding was commenced in the Federal Circuit Court of Australia and then transferred to this Court.

54    The applicant’s amended application for review of a migration decision sets out the following two grounds of the application:

1.    The Minister failed to discharge his statutory task and/or his decision was legally unreasonable in that:

a.    he failed to assess the likelihood of reoffending in circumstances where the nature of the offending was not such that it was open to find (and, in any event, the Minister made no finding) that any risk of reoffending, howsoever small, warranted cancellation; and/or

b.    he failed, in assessing the likelihood and/or consequences of reoffending, to differentiate between the Applicant’s (historical) violent offences and his (recent) dishonesty offences.

2.    The Minister, in exercising his discretion, had regard to the punitive effect of visa cancellation, which was an irrelevant consideration.

PARTICULARS

a.    The Minister had regard to the Applicant’s criminal record, without more, as a factor favouring visa cancellation.

b.    The Minister also had regard to a (perceived) expectation of the Australian community that the Applicant should not hold a visa on account of his criminal record.

Sections 501 and 501CA

55    As I noted in BCR16 v Minister for Immigration and Border Protection [2016] FCA 965 at [46], ss 501(3A) and 501CA were inserted into the Migration Act by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth). The explanatory memorandum to the Bill which became that Act stated that the amendments to the Migration Act would implement a number of reforms to the character and general visa cancellation provisions arising in part from a review carried out by the Department in 2013. It was stated that the character provisions in Pt 9 of the Migration Act had been in place in their current form since 1999, and the general visa cancellation provisions in Subdivision D of Div 3 of Pt 2 had remained largely unchanged since 1994. The explanatory memorandum stated that, since that time, the environment in relation to the entry and stay in Australia of non-citizens had changed dramatically and that “[t]he amendments to the Migration Act that are proposed to be made by the Bill will strengthen the character and general visa cancellation provisions and reform the approach to the cancellation of visas of non-citizens who are in prison”.

56    In relation to proposed s 501(3A), the explanatory memorandum stated that “[t]he intention of this amendment is that a decision to cancel a person’s visa is made before the person is released from prison, to ensure that the non-citizen remains in criminal detention or if released from criminal custody, in immigration detention while revocation is pursued”. In relation to proposed s 501CA, the explanatory memorandum stated that “[t]he requirement to give notice to the person and invite the person to make representations about revocation of the decision to cancel allows the person the opportunity to satisfy the Minister or delegate that the person passes the character test, or that there is another reason why the original decision should be revoked”.

57    Sections 501(3A) and 501CA were considered by Tracey J in Picard v Minister for Immigration and Border Protection [2015] FCA 1430. In that case, the applicant contended that there had been a denial of procedural fairness in relation to the Minister’s decision under s 501CA not to revoke a cancellation decision.

58    While the case law in relation to ss 501(3A) and 501CA is limited, there has been extensive judicial consideration of s 501(1) and (2) which are in the following terms:

(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.

59    In Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367, the Full Court of this Court considered whether the Minister is bound to consider any risk of harm to the Australian community posed by the continued presence of the visa holder in Australia when exercising the discretion under s 501(2). Rangiah J (with whom North J agreed) referred at [43] to the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424. Rangiah J at [48]-[66] agreed with the view of Mortimer J that 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).

60    Rangiah J then considered whether the Minister is bound to evaluate the likelihood of any future harm to the Australian community. His Honour noted at [67] that the appellant argued that the concept of risk of harm comprises two integers: the seriousness of any harm that might be caused; and the likelihood of that harm occurring. The appellant in Moana submitted that the Minister was required to make findings as to each of those integers when exercising the discretion. Rangiah J said at [71]-[74]:

71    If the Minister is to be held to be bound to examine the likelihood of a person engaging in future conduct which may cause harm in every exercise of the discretion under s 501(2), then an implication to that effect must appear from the subject matter, scope and purpose of the Act. It is not enough to argue that principles concerning other statutory provisions with a protective purpose must apply analogously to s 501(2). It is one thing to conclude, as I have, 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.

72    The cases concerning s 501A relied on by the Minister … establish that the seriousness of an offence may, of itself, lead the Minister to conclude that a visa should be cancelled in the national interest. I consider that the seriousness of an offence or other relevant past conduct may also lead the Minister to conclude that a visa should be cancelled in the discretion under s 501(2) without evaluating the likelihood that the visa holder will reoffend or engage in harmful conduct. It is implicit in s 501 that Parliament considers that a person who does not pass the character test poses a risk of harm of some kind, although that does not lead to a presumption that the discretion should be exercised in a particular way. In a particular case, however, the Minister may take the view the seriousness of the offence or conduct means that any risk is intolerable. It follows that in exercising the discretion in s 501(2), the Minister is not bound to engage in an evaluation of the likelihood of a person engaging in future conduct which may cause harm.

73    Contrary to the appellant’s submission, I doubt whether Mortimer J [in Tanielu] held that the Minister must evaluate the static and dynamic factors personal to an individual that may affect the risk that the person may pose when exercising the discretion. I think that her Honour was merely illustrating the factors of the type that might influence the likelihood of a person engaging in future conduct which may cause harm. In any event, there is direct authority against the proposition that the Minister is bound to consider factors personal to the visa holder: [Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505] at [74] per Kiefel and Bennett JJ. I am unable to see how s 501(2) can be construed to require the Minister to take into account such personal factors when considering the risk of harm.

74    I consider that the Minister is not bound to conduct an evaluation of the likelihood of the visa holder engaging in future conduct that may cause harm when exercising the discretion under s 501(2). That is not to say that evaluation of such likelihood will not be centrally relevant to the exercise of the Minister’s discretion in most cases. The exercise of the discretion to cancel a visa without examining the likelihood of future harm may in some circumstances be unreasonable, in the sense of lacking an evident and intelligible justification: cf Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ. However, s 501(2) cannot be construed to require the Minister to take into account that likelihood in all cases.

61    It will be observed that Rangiah J in the passages referred to above addressed two distinct issues. First, he considered whether the Minister is bound to consider the risk of harm to the Australian community, concluding that the Minister is bound to consider this. Secondly, Rangiah J considered whether the Minister is bound to evaluate the likelihood that the person will re-offend or engage in harmful conduct, and concluded that, while this will be centrally relevant in most cases, the Minister is not bound to engage in such an evaluation. I note that, in Le v Minister for Immigration and Border Protection [2015] FCA 1018 at [51], Rangiah J reconciled his reasons in Moana with those of Kiefel and Bennett JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505.

62    A number of subsequent Full Court decisions have considered or referred to these issues: Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at [33]-[40], [44] per Flick, Griffiths and Perry JJ; Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132 at [22]-[23] per Allsop CJ, Flick and Griffiths JJ; Brown v Minister for Immigration and Border Protection (2015) 235 FCR 88 at [37]-[38], [41] per Rares, Flick and Perry JJ; AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105 at [49]-[54] per Allsop CJ, Robertson and Griffiths JJ.

63    Another issue that has been considered in the context of s 501(2) is whether the power is to be regarded as punitive in character because it involves interference with the liberty of the individual or imposes what might be seen as sanctions in connection with criminal conduct. This issue was considered by the Full Court of this Court in Djalic v Minister for Immigration and Multicultural Affairs (2004) 139 FCR 292. In that case, the Minister took into account the “expectations of the Australian community” in his decision to cancel the appellant’s visa under s 501(2) (see [38]). The appellant argued that, to the extent that s 501(2) purports to authorise the Minister to take community expectations into account in determining whether to cancel the visa of a person convicted of a criminal offence, it impermissibly permits the Minister to punish the offender for having committed those offences (see [46]). The Full Court (Tamberlin, Sackville and Stone JJ) concluded that the “power to cancel a visa or order the deportation of a non-citizen is not to be regarded as punitive in character merely because exercise of the power involves interference with the liberty of the individual or imposes what the individual may see as sanctions consequential upon his criminal connections” (at [66]). The Full Court said that s 501(2) “is sufficiently broad to allow the Minister to take into account his or her assessment of the expectations of the Australian community as to whether or not a non-citizen who commits serious criminal offences should be permitted to remain in the country” (at [72]). After stating that s 501(2), insofar as it empowers the Minister to take into account considerations relevant to protection of the Australian community, does not infringe Chapter III of the Constitution, their Honours stated (at [74]):

Similarly, the authorities indicate that, insofar as s 501(2) permits the Minister to take account of community expectations as to whether non-citizens who commit serious offences should not be permitted to remain in the country, it does not contravene Chapter III of the Constitution. To take account of community expectations is to give effect to the Minister’s conception of the public interest. Sometimes this consideration may work in favour of the non-citizen. In the present case, for example, the Minister said that he took into account that some members of the Australian community would feel compassion for the appellant, since he had lived in Australia as a young child. Often, however, the Minister’s assessment of community expectations will work against the non-citizen. This will be so, for example, where the Minister gives effect to his or her assessment of ‘community expectations’ in determining that the non-citizen has engaged in behaviour that is unacceptable to the Australian community. To take account of such a consideration, however, is not to impose punishment for a criminal offence. There is therefore no occasion to read down s 501(2) to exclude consideration of community expectations from the scope of the Ministerial discretion to cancel the visa of a non-citizen.

64    I will proceed on the basis that, at least in relation to the issues that arise in the present case, the principles discussed above in relation to the power to cancel a visa under s 501(2) are equally applicable to the power to revoke a cancellation of a visa under s 501CA(4). As with s 501(2), the power in s 501CA(4) is unfettered in its terms. Although in the case of s 501(2) the power is to cancel a visa where the person does not satisfy the Minister of certain matters, and in the case of s 501CA(4) the power is to revoke a cancellation of a visa where the Minister is satisfied of certain matters, in each case the effect of an unfavourable decision is that the person will not have a visa (or the relevant visa) on grounds relating to the character test, and in each case the power is conferred in terms of a state of satisfaction. Both parties in their submissions proceeded on the basis that the principles discussed in the cases in relation to s 501(2) were applicable to the issues that arise in the present case.

The first ground: risk of harm to the Australian community

65    The applicant invokes notions of rational or reasonable decision-making rather than (as considered in Moana) mandatory relevant considerations. The applicant submits that the Minister may identify a risk of harm that is so serious as to be unacceptable, whatever the likelihood of its coming to pass; alternatively, he may weigh the risk of harm by considering both the seriousness of the harm and the likelihood of re-offending; but only through one or other of these modes of reasoning can the Minister balance the risk of harm against countervailing considerations. The applicant submits that to reason otherwise (eg, by simply identifying a risk of harm and then purporting to balance it against countervailing considerations) would be an unreasonable exercise of the Minister’s discretion or a failure to complete the task at hand: cf Moana at [74]; Te Puke v Minister for Immigration and Border Protection (2015) 230 FCR 499 at [73] per Wigney J; Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117 at [65] per Gilmour J.

66    As noted above, the applicant’s first ground has two limbs. In relation to the first limb, the applicant’s submissions can be summarised as follows:

(a)    The Minister’s finding that the applicant poses “an ongoing likelihood of reoffending” is not a finding as to what that likelihood is. Nowhere does the Minister grapple with this question. Similarly, nowhere does the Minister make a finding that the potential harm to the Australian community is so serious that any likelihood of re-offending is unacceptable.

(b)    Nothing suggests that the Minister omitted to record any aspect of his reasoning process. To the contrary, in circumstances where the Minister was under a statutory obligation to record his findings on material questions of fact, the Court may comfortably infer that he made neither of the findings in question and, thus, that he did not properly consider the question of risk.

(c)    It follows that the Minister’s decision is legally unreasonable and/or involves a failure to understand (or, in any event, discharge) his statutory task.

67    In my view, for the reasons that follow, the first limb of the applicant’s first ground is not made out.

68    By parity of reasoning with the cases on s 501(2) discussed above, the Minister in exercising the power conferred by s 501CA(4) has no duty to evaluate the risk of harm to the Australian community “in any particular way or to ascribe any particular characterisation to the quality of the risk”: see Brown at [41], citing Moana at [71] and Ayoub at [44]. In other words, there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational (in the sense used in cases such as Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1).

69    The applicant’s submission summarised in [65] above, to the effect that there are only two logical or rational modes of reasoning, is overly prescriptive. There may be other ways of reasoning in relation to the risk of harm to the Australian community which are logical and rational. It is necessary to look at the reasoning adopted in the particular case and consider whether it is legally unreasonable.

70    In the present case, contrary to the applicant’s submissions, the Minister did assess the likelihood of re-offending:

(a)    The Minister considered offences such as embezzlement and theft to be “serious” and violent offences to be “very serious” (Statement of Reasons, [51]).

(b)    The Minister referred to the applicant’s 2014 offences at [53]-[54] and his earlier violent offences at [55]-[61] of the Statement of Reasons. The Minister then referred to the driving offences.

(c)    After discussion of matters such as rehabilitation and remorse, the Minister found that the applicant “poses an ongoing likelihood of reoffending” (Statement of Reasons, [82]). The Minister also found that if the applicant did re-offend in a similar manner, “it could result in conduct that could cause financial, emotional and/or physical harm to a number of the Australian community” (also at [82]).

(d)    The Minister therefore concluded that the applicant “represents an unacceptable risk of harm to the Australian community” (Statement of Reasons, [90]).

71    The finding that the applicant posed “an ongoing likelihood of reoffending” is tantamount to a finding that there was “a” risk of re-offending. This was sufficient, in my view, to support a rational and logical reasoning process. It was not incumbent on the Minister to make a more precise finding as to the gradation of risk posed by the applicant in order to support a rational and logical reasoning process. Indeed, it might be said to be unrealistic to expect the Minister to do so given the inherent difficulty of predicting human behaviour of this kind.

72    For completeness, I note that it is clear that the Minister did assess the risk of harm to the Australian community. He considered there to be an “unacceptable” risk of harm to the Australian community.

73    For these reasons, it is not shown that the Minister failed to discharge his statutory task or that his decision was legally unreasonable for failure to assess the likelihood of re-offending.

74    In relation to the second limb of the applicant’s first ground, the applicant’s submissions can be summarised as follows:

(a)    Even if the Minister did consider both the seriousness of the applicant’s offending and the likelihood of re-offending, his findings on these two integers were not referable to the same risk.

(b)    As regards the seriousness of the applicant’s offending, the Minister referred to an “extended period of serious offending” by the applicant and that “the Australian community could be exposed to great harm” should he “reoffend in a similar fashion” (Statement of Reasons, [88]-[89]). However, it is not obvious, from the Minister’s reasons, what offending was serious.

(c)    As regards the likelihood of harm through re-offending, the Minister referred to the “prolonged period” in which the applicant did not offend following his 2006 offence, but remarked that “he nevertheless offended more recently in 2014 via dishonesty offences” (Statement of Reasons, [81]). This led the Minister to conclude that the applicant posed “an ongoing likelihood of reoffending”.

(d)    It can thus be seen that the Minister based his decision on his assessment of the seriousness of the applicant’s historical violent offending and – to the extent that he assessed it at all – an assessment of the likelihood of re-offending based (at least substantially) on the applicant’s recent dishonesty offending. However, he did not grapple with this disconnect.

(e)    The point is not that the Minister was required to grapple with these matters in any particular way. It is that he failed to grapple with them at all. He failed to link his own findings as to seriousness and likelihood of re-offending. He thus made an unreasonable decision and failed to discharge his statutory task, which was to assess the risk of harm to the Australian community logically and rationally.

75    In my view, the second limb of the applicant’s first ground is not made out. A critical element of the applicant’s argument is that the Minister did not assess the applicant’s recent (2014) dishonesty offences as serious. But that overlooks [51] of the Statement of Reasons, where the Minister expressly stated that offences such as embezzlement and theft are “serious”. It is thus not correct to say that the Minister based his decision on the seriousness of the applicant’s historical violent offences; the Minister also considered the recent dishonesty offences to be serious. Therefore, I do not think the Statement of Reasons suffers from the disconnect outlined in the applicant’s submissions.

The second ground: punishment

76    By the second ground, the applicant contends that the Minister had regard to an “irrelevant consideration”, that is, a matter that he was prohibited from taking into account. The applicant’s submissions can be summarised as follows:

(a)    It is well established that the Minister cannot regard visa cancellation as a form of punishment for past crimes: Djalic at [68]; Tanielu at [129]-[152]; Moana at [50]-[58]; Stretton at [70](d). This is because punishing crime is an exclusively judicial function and also because the Australian system of justice does not permit double punishment: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27; Djalic at [58]; NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [183]. This limitation is not confined to a decision based, in terms, on the imperative to punish. To the contrary, because constitutional guarantees are concerned with substance and not form, the Minister must not “do indirectly what is prohibited directly”: Caltex Oil (Australasia) Pty Ltd v Best (1990) 170 CLR 516 at 522. Relevantly, he must not have regard to “expectations of the Australian community” to the effect that a person deserves to have his or her visa cancelled on account of past crimes.

(b)    These limitations are not referred to in the Minister’s reasons, nor in the Issues Paper by which he was advised about matters relevant to his exercise of power. This is despite their obvious relevance to someone who fails the character test on account of his criminal record.

(c)    The Minister discussed the expectations of the Australian community in [22] and [23] of the Statement of Reasons. The second sentence of [22] incorrectly contemplates that the Minister may have regard to expectations of the Australian community that relate both to what a person has done in the past and to what he or she might do in the future. The third sentence of [22] then makes clear that, in the present case, the Minister in fact had regard to expectations of the backward-looking variety. This is confirmed by the structure of the Minister’s reasons, which separately discuss the “risk of reoffending” in a later section (without linking the two discussions).

(d)    The distinction is maintained in the Minister’s concluding remarks at [88] and [89]. It is impossible to read [88] as merely preliminary to later remarks about the risk of re-offending. It can only be concluded that the Minister based his decision in part on a view – whether his or the Australian community’s – that the applicant deserved to be punished. This was an irrelevant consideration.

77    In my view, the applicant’s second ground is not made out. In Djalic, the Full Court held that the Minister did not exercise the cancellation power in s 501(2) for invalid “punitive” purposes by taking into account the Minister’s perception of expectations of the Australian community as to whether non-citizens who commit serious offences should be permitted to remain in the country: see [63] above. The applicant submits that Djalic rejected the proposition that taking into account the expectations of the Australian community is per se punitive; and that the decision does not preclude a finding in a particular case that community expectations have been relied on in a punitive way. However, I do not read the Statement of Reasons as reflecting a view (whether of the Minister or one attributed to the Australian community) that the applicant deserved to be (further) punished for his offences and, for this reason, the cancellation decision ought not be revoked. Rather, I read the discussion of the expectations of the Australian community (including the references to breach of trust) as directed to whether a non-citizen who has committed serious offences leading to mandatory cancellation of his visa should have the cancellation revoked.

Conclusion

78    For the reasons set out above, the application is to be dismissed. Both parties accepted that costs should follow the event. There will therefore be an order that the applicant pay the Minister’s costs.

Associate:

Dated:    6 October 2016