FEDERAL COURT OF AUSTRALIA
BMX15 v Minister for Immigration and Border Protection [2016] FCA 1183
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The Applicant’s Further Amended Application dated 17 February 2016 (“the application”) is dismissed.
2. Should the Applicant seek an order as to costs the Applicant must, within 7 days hereof, file and serve an application and a submission in support.
3. Any submission in opposition to such an order must be filed and served within 14 days hereof.
4. If no application for a costs order is made by the Applicant in accordance with order 2, the Applicant pay the Respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
BROMBERG J:
1 The applicant was born in Vietnam, and is a citizen of that country. He arrived in Australia in 1993, as the holder of a Class BF Subclass 200 Refugee (Permanent) visa. On 21 July 2000 he was granted a Class BB Subclass 155 Resident Return (Permanent) visa.
2 On 3 May 2002, the applicant was sentenced in the Supreme Court of New South Wales to 14 years’ imprisonment, with a non-parole period of nine years, for a conviction of murder, and 12 months’ imprisonment for a conviction of unlawful imprisonment. On 19 June 2002, the applicant was sentenced to a further 10 years’ imprisonment for another conviction of murder.
3 On 12 January 2015, the Department of Immigration and Border Protection notified the applicant that his visa had been cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) (“original cancellation”). On 6 February 2015, the applicant requested revocation of the original cancellation under s 501CA(4) of the Act. After receiving representations from the applicant, on 21 June 2015 the respondent (“Minister”) decided not to revoke the original cancellation (“non-revocation decision”).
4 By his further amended application, the applicant seeks that a writ of certiorari be issued to quash the Minister’s non-revocation decision and associated relief. Four grounds were advanced. Before turning to consider each I should set out the relevant legislation.
The Legislation
5 The cancellation of the applicant’s visa came about by operation of s 501(3A) of the Act, which provides as follows:
501 Refusal or cancellation of visa on character grounds
…
(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.
6 In the instant case, the applicant fulfilled s 501(3A)(a)(i), on the basis of paragraphs (6)(a) and (7)(c): he had a “substantial criminal record” as a consequence of having been sentenced to a term of imprisonment of 12 months or more. It was not in dispute that, as at 12 January 2015, s 501(3A)(b) was also fulfilled, and therefore that the Minister was obliged to cancel the applicant’s visa. Thereafter, s 501CA assumed relevance:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(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.
Note: For notification of decisions under subsection (4) to not revoke, see section 501G.
7 It is not in dispute that the applicant did not pass the “character test” as defined by s 501, and therefore that the applicant was reliant upon satisfying the Minister “that there [was] another reason” why the cancellation decision should be revoked.
8 The Minister submitted, the applicant did not dispute, and I accept, that:
There is as yet little authority on the construction and application of s 501(3A) and s 501CA of the Act. Nevertheless, some of the principles that have been developed in the context of refusal and cancellation decisions under s 501(1), (2), and/or non-revocation decisions under s 501C[A](4), may be relevant and applicable by analogy to the exercise of the power conferred by s 501CA(4) to revoke a mandatory cancellation decision.
9 One of the issues in this case is the significance of any non-refoulement obligation that Australian owes to the applicant. As the Full Court stated in Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513, the concept of non-refoulement has its origin in art 33 of the Convention Relating to the Status of Refugees 1951, done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees 1967, done at New York on 31 January 1967 (together “Refugee Convention”). Art 33 provides as follows:
PROHIBITION OF EXPULSION OR RETURN (“REFOULEMENT”)
1. No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
10 As Buchanan J explained in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [88]–[95], although art 33 has not been incorporated into domestic law a person in the applicant’s position may expect to have its protection.
11 “Refugee” is defined in the Act, in s 5H, thus:
5H Meaning of refugee
(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a) in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
(2) Subsection (1) does not apply if the Minister has serious reasons for considering that:
(a) the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(b) the person committed a serious non-political crime before entering Australia; or
(c) the person has been guilty of acts contrary to the purposes and principles of the United Nations.
12 It is also relevant to note that an obligation of non-refoulement may arise in international law in circumstances which fall outside those governed by the Refugee Convention. For instance, art 3 of the Convention Against Torture 1984, done at New York on 10 December 1984, prohibits the expulsion or refoulement of a person “in danger of being subjected to torture”. These other non-refoulement obligations have been acknowledged as giving rise to protection obligations in Australian law through the adoption of what are known as the complementary protection criteria for a protection visa found in ss 36(2)(aa) and 36 (2A) of the Act.
Ground 1: Legal unreasonableness
13 Ground 1 alleges that the Minister failed to assess the nature of the risk or the likelihood that the applicant would re-offend. In oral submissions the applicant made clear that his contention was that that failure resulted in the non-revocation decision being legally unreasonable.
14 In two recent judgments, Allsop CJ, Griffiths and Wigney JJ have considered the content of the requirement that decisions be legally reasonable, which is to say that they must not be legally unreasonable. The first, Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, contains a detailed discussion of that concept as set out in particular in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (see in particular Allsop CJ at [4]–[13] and Griffiths J at [52]–[62]). In the second, Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158, their Honours summarise in seven points what falls from Li, Singh, and Stretton, noting that the seven-point summary does not supplant or derogate from those cases. The seven points are these (citations omitted):
[58] First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making.
[59] Second, the Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory. It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker. Nor does it involve the Court remaking the decision according to its own view of reasonableness.
[60] Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an “outcome focused” conclusion without any specific jurisdictional error being identified.
…
[62] Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion. Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness. Such a decision falls within the range of possible lawful outcomes of the exercise of the power.
[63] Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute. The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making. The evaluation is also likely to be fact dependant and to require careful attention to the evidence.
[64] Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes.
[65] Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary. That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
15 In connection with the fifth of the foregoing points, I refer to [64]–[71] of Stretton. There, Griffiths J set out the “relevant features” of s 501. His Honour’s analysis was adopted by the Full Court in Eden (at [14]–[20]). It is not necessary to set out those paragraphs in full.
16 It is appropriate to quote from Eden at [19], which is a summary of a list of factors set out at [70] of Stretton as tending to indicate that the authority to decide whether or not to cancel a person’s visa under s 501(2) is broad:
Fourth, there are a number of indicators that suggest that the Minister’s discretion under s 501(2) is, and is intended to be, broad. That is a relevant consideration in assessing whether a decision under s 501(2) of the Act is unreasonable in a legal sense. The indicators include, but are not necessarily limited to, the following: the absence of an express list of considerations to be taken into account; the broad statement of the object of the Act in s 4(1) as being to “regulate, in the national interest, the coming into and presence in, Australia of non-citizens”; the fact that the discretion is conferred upon the Minister who holds political office and is accountable to Parliament; the fact that a decision under s 501(2) which is made by the Minister personally is not subject to merits review; and the fact that the Minister is obliged by s 501G(1)(e) of the Act to provide a written statement of reasons.
17 Finally, it is relevant (as Griffiths J noted at [71] of Stretton; see also [20] of Eden) that the power to refuse to grant or to cancel a visa is a substantive power. It is to be contrasted with powers of a procedural nature. As Griffiths J explained, “other matters which inform that standard have to be taken into account but, generally speaking, the intensity of the legal standard is likely to be higher in the case of review of the exercise of a discretion which is of a procedural character”.
18 The applicant’s argument was that the Minister was obliged to take into account the risk to the Australian community. So much is consistent with the judgment of Rangiah J (with whom North J agreed) in Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367, although there is some tension in the case law: see the discussion in AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105 at [49]–[53] (Allsop CJ, Robertson and Griffiths JJ). As I said in Buchwald v Minister for Immigration and Border Protection [2016] FCA 101 at [70], the position that seems to fall from Moana, is as follows:
(1) 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, though in general terms only (Moana at [48], [66], and [71] per Rangiah J, with whom North J agreed); and
(2) the Minister is not bound to engage in an evaluation of the likelihood of a person engaging in future conduct that may cause harm (Moana at [73], [74]).
(3) notwithstanding (2), an evaluation of likelihood may be centrally relevant in many cases and the exercise of discretion to cancel a visa without consideration of the likelihood of engaging in future conduct that may cause harm may be unreasonable in the sense of lacking an evident and intelligible justification (Moana at [74]).
19 Evaluation of the applicant’s argument requires scrutiny of the Minister’s reasons for making the non-revocation decision (“Reasons”). The applicant submitted that the Minister had referred to the following matters:
(a) that sentencing courts had said that the applicant had good prospects of rehabilitation (Reasons [48]);
(b) that sentencing courts had referred to the applicant’s co-operation, remorse, and that he had been coerced to participate in or perpetrate his crimes (Reasons [49]);
(c) that sentencing courts had imposed a shorter non-parole period because of his good prospects of rehabilitation (Reasons [50]);
(d) the applicant’s circumstances of hardship, which had led him to become involved in a criminal gang (Reasons [52]);
(e) support letters provided on behalf of the applicant referring to his “flawless” conduct in custody and his presentation as “positive, hard-working, engaged and motivated” (Reasons [53]);
(f) the absence of any evidence of further serious offences following the second murder in August 1996 and the applicant’s arrest in October 2000 (Reasons 54]);
(g) support letters concerning offers of assistance that had been made to the applicant with a view to assisting him to re-integrate into the community (Reasons [55]); and
(h) housing, employment, and counselling available to the applicant in the community, and his rejection of his former lifestyle and associations (Reasons [56]).
20 The Minister’s conclusion as to risk was expressed at [58]:
I find that [the applicant] has been compliant in prison, has posed no management issues, has engaged in rehabilitation, is remorseful for his past actions and enjoys the continued strong support of his extended family and members of the Vietnamese community. Although I find that [the applicant] poses a low risk of reoffending, if that risk were to eventuate great harm could flow to a member or members of the Australian community.
21 Earlier, the Minister had considered the best interests of minor children (at [13]–[17]), and had concluded that it was in the interests of the applicant’s child for the visa cancellation decision to be revoked. The Minister had considered the strength, nature, and duration of the applicant’s ties to Australia (at [22]–[28]) and had concluded that the applicant had strong ties to Australia and that the applicant’s family and friends would experience emotional hardship were his visa cancellation not revoked. The Minister considered the extent of impediments if the applicant was removed (at [29]–[38]) and had concluded that his removal to Vietnam would involve substantial hardship for him, at least initially, for reasons there given.
22 At [62]–[68], the Minister summarised her findings as to the matters earlier discussed in her reasons, and expressed conclusions. At [62]–[64], the Minister summarised her findings on the issues of the interests of minor children, the applicant’s ties to Australia, and the consequences of her decision on family members. Those matters, as is apparent from the previous paragraph, counted in the applicant’s favour. Then, at [65]–[68] of the Reasons, the Minister continued thus:
[65] 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 very serious nature of the crimes committed by [the applicant], that of two murders, which are of a violent nature. I am also mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia.
[66] Further, I find that the Australian community could be exposed to great harm should [the applicant] re-offend in a similar fashion. Despite the low level of risk, I could not rule out the possibility of further offending by [the applicant].
[67] I am cognisant that where great harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the decision to cancel the visa, even applying a higher tolerance of risk of re-offending by [the applicant], than I otherwise would, because he has lived in Australia for the majority of his life, that being for 22 years starting at age 13/16 [sic].
[68] 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 as described above. These include his period of residence of 22 years and bonds, international non-refoulement obligations, employment and volunteer work and the hardship [the applicant], his family and social networks will endure in the event the original decision is not revoked.
23 Whether or not the Minister was bound to take into account the risk to the Australian community posed by the continued presence of the applicant in Australia, it is evident from the reasons that she did so.
24 However, the applicant submitted that the Minister’s reasons “fail to disclose how she arrived at the conclusion at paragraph [68] that the applicant represented an ‘unacceptable risk of harm to the Australian community’”, as all the factors considered under the rubric “risk to the Australian community” set out at [48]–[56] of the Reasons, were “entirely favourable to the applicant”. Accordingly, the applicant submitted, it ought to be inferred that there was a “failure to assess or evaluate relevant risk factors”, and that there was “no clear or intelligible basis” for the finding made in paragraph [68] of the Reasons.
25 The Minister, on the other hand, submitted that there was a clear and direct assessment and evaluation both of the level and the nature of the risk of harm to the Australian community. The Minister submitted that the Reasons disclose a “balancing of the nature of the offending conduct and the risk of harm to the community if the Applicant were to reoffend in a similar manner”. It was submitted that the Minister had concluded that the offending conduct was so serious that even a low risk of harm was unacceptable.
26 The Minister submitted that it is permissible to approach the exercise of discretion “on the basis that any risk of serious harm (from particularly serious offending) is unacceptable”. The Minister cited Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505, in which Kiefel and Bennett JJ said at [74] that “the Minister may consider that the national interest requires that the commission of a particular type of offence will inevitably result in the cancellation of a visa, where there has been a sentence to imprisonment for the requisite term”. The Minister also cited Re Patterson; ex parte Taylor (2001) 207 CLR 391 in which Gaudron J at 419 said that “the crimes of which a person has been convicted may be of such a nature as to found a satisfaction that it is in the national interest to cancel his or her visa”. Similarly, in Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326, a Full Court of this Court (French, O’Loughlin and Whitlam JJ) held (at 352) that “[t]here may be circumstances in which the seriousness of a person’s criminal history will be sufficient to satisfy the Minister that the refusal of a visa is in the national interest”. In Moana at [72], Rangiah J (with whom North J agreed) observed that the authorities “establish that the seriousness of the offence may, of itself, lead the Minister to conclude that the visa should be cancelled in the national interest”.
27 In the main, I accept the Minister’s submissions on the question. In particular, I accept that the Minister’s evaluation of risk comprised two components: an assessment of the likelihood of the applicant re-offending; and, an assessment of the gravity of what might eventuate were the applicant to re-offend. That can be clearly seen from the structure of the Minister’s reasons. At [39] of the Reasons, the heading “Protecting the Australian Community” appeared. There appeared thereunder two subheadings: “Criminal conduct” (with paragraphs [40]–[47] following) and “Risk to the Australian community” (with paragraphs [48]–[58] following). Under the “criminal conduct” subheading, the Minister described the nature of the applicant’s offending, concluding that “murder is, objectively, a very serious offence, for which [the applicant] received two significant terms of imprisonment”. That, it appears to me, fed into [57] of the Reasons, under the subheading “Risk to the Australian community”, whereat the Minister said as follows:
As a consequence of [the applicant’s] offending, two persons have died. If [the applicant] re-offended in a similar manner, it could result in the death [of] or other harm to a member of the Australian community.
28 The Minister found that the likelihood of re-offending was low. That was in the applicant’s favour. However, the gravity of possible harm was high. That was against the applicant. Or, as the Minister put it herself, in the last sentence of [58], “Although I find that [the applicant] poses a low risk of reoffending, if that risk were to eventuate great harm could flow to a member or members of the Australian community”.
29 That combination of likelihood and gravity (which I will call “overall risk”) was weighed against other relevant factors. The Minister considered that the overall risk outweighed those other factors. That was not illogical or irrational. It was not legally unreasonable. There was a clear process of reasoning leading to that outcome. It is true, of course, that other decision-makers might reasonably have reached a different conclusion on the merits, but that (of course) does not suffice to demonstrate that this decision was legally unreasonable. This decision was not “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, or “obviously disproportionate”: cf AZAFQ at [58]. Accordingly, ground 1 fails.
30 The applicant referred to the judgment of Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 in support of the proposition that the likelihood of a person engaging in conduct capable of causing harm is a mandatory relevant consideration. The Minister submitted that Tanielu was at odds with the more-recent authority of Moana and that the former should not be followed. That contention has the added support of AZAFQ where, at [55], Allsop CJ, Robertson and Griffiths JJ determined that there was no obligation upon the Minister to quantify the risk to the Australian community. In any event, it appears to me that the Minister did grapple with the likelihood of the applicant re-offending and effectively decided the issue favourably to the applicant by finding that there was a low risk of his re-offending. Mortimer J held in Tanielu at [110] that assessment of risk of harm to the Australian community was rooted in “an assessment of the characteristics of the particular applicant—not only his or her previous offences, but all aspects of his or her history, and the ‘dynamic factors’ to which I have referred”. Her Honour continued that “[c]onsideration of those factors must then be combined with consideration of what kind of offences the applicant might commit in the future—bearing in mind this may or may not be the kind of offences an applicant has committed in the past—with some evidentiary basis being disclosed for that consideration”.
31 It seems to me that precisely those matters were taken into account by the Minister at [48] to [56] of the Reasons, wherein there was a discussion of the circumstances of the offences (including matters personal to the applicant such as his youth, lack of criminal antecedents, understanding of the enormity of his crime, the extent to which, in carrying out those crimes, the applicant had been coerced or controlled by others and remorse), his prospects of rehabilitation, the imposition of a shorter non-parole period, and the other matters I have listed at [19] above. Accordingly, it seems to me that even if the approach in Tanielu ought to properly be followed, the Minister in this case did give consideration to the matters to which she was required to have given consideration.
Ground 2: Fettering discretion
32 The applicant’s argument centred upon paragraph [66] of the Reasons, which provided thus (emphasis added):
Further, I find that the Australian community could be exposed to great harm should [the applicant] re-offend in a similar fashion. Despite the low level of risk, I could not rule out the possibility of further offending by [the applicant].
33 The applicant argued that the reasoning imposed a test “which was impossible for the applicant to meet”, and which “deprived the applicant of any meaningful prospect of having his cancellation set aside”, because “[i]t is difficult to contemplate any case in which the Minister could rule out the possibility of further offending”.
34 The Minister first submitted that the italicised sentence in the above quote has been taken out of context by the applicant. The Minister said that the Reasons include findings in various places that the applicant posed a “low risk” of re-offending, and that the reference to being unable to “rule out” the possibility of further offending is merely a reference back to the earlier findings of “low risk”. Accordingly, said the Minister, properly understood there was no requirement imposed by the Minister for the applicant to “exclude any possibility of further offending” in order to enliven the discretion to revoke the original decision.
35 Second, said the Minister, it is “difficult to identify error” arising from a reference to being unable to rule out further criminal activity where the Minister was not obliged to consider or evaluate the likelihood of criminal conduct, and where the Minister was entitled to find that any risk was intolerable. Third, the Minister submitted that risk of re-offending was merely one factor in the Minister’s consideration and did not, in fact, constitute a fetter, in the sense that it was not necessarily determinative.
36 I am attracted to the third of the Minister’s submissions. As I explained above, in relation to Ground 1, the Minister’s assessment of risk to the Australian community comprised at least two elements: the harm that would follow from re-offending of a similar kind, and the probability of future re-offending. In simple terms, the former was found to be high, and the latter was found to be low but not so low as to involve no risk. In order for me to conclude that the Minister’s statement at [66] constituted a fetter, I would have to conclude that even if the Minister had found that harm from re-offending would be low the outcome would have been the same. In other words, I would have to conclude that, no matter what other findings were made, an inability to “rule out” the possibility of further offending would preclude revocation of a cancellation decision. I have no basis for so concluding.
37 It is entirely possible that had the applicant’s crimes been less serious, the Minister would have made a different finding—one more favourable to the applicant—concerning the harm that would follow from re-offending of a similar kind. In that case, the Minister might also have found that the combination of gravity and probability—what I called above overall risk—was tolerable. In that case, it would be plain that an inability to rule out further offending did not preclude a favourable exercise of discretion. Accordingly, I have no basis for saying that the final sentence in [66] operated as a fetter of discretion.
38 It is also important to note that the Minister did weigh against her findings as to risk her findings as to connection with Australia, interests of children, and other matters. Unless it could be shown that factors counting in the applicant’s favour could never offset an inability to rule out further offending, so as to result in a favourable exercise of discretion, I could not conclude the stipulation of a “ruling-out” test operated as a fetter on discretion. Put another way, I have no basis for thinking otherwise than that, on particular mixes of factors, including where one of the factors is that the risk of the applicant further offending could not be ruled out, a favourable exercise of discretion might result. In that case, I cannot conclude that taking into account as a factor an inability to rule out risk of re-offending operated as a fetter of the Minister’s discretion. Clearly it was a weighty factor, and one that might in some (or many) cases be determinative. But that is not sufficient for the success of ground 2.
39 Ground 2 must therefore be dismissed.
40 However, I am not attracted to the Minister’s other submissions. As to the first, it is one thing to give a sentence a “beneficial construction”. It is another to read the words “rule out the possibility of further offending” as intending to repeat a finding that there was a “low level of risk”. In my view, that reading is not open where earlier in the same sentence the Minister had used exactly those words: “low level of risk”. In my opinion, the impugned sentence means, as the applicant submitted, effectively this: “I accept that the risk is low. But, it’s not nil”. The question, then, is whether a finding that the risk was not nil fettered the Minister’s discretion. As I have already explained, it did not.
41 As to the second, even if the Minister was not obliged to enter into a consideration or evaluation of the likelihood of future criminal conduct, the fact is that the Minister did enter into that consideration or evaluation. If, in so doing, the Minister set up a fetter on discretion, the decision would be affected by jurisdictional error.
42 The “relevant legal constraint” is that the Minister must “apply [a] policy flexibly, that is, having regard to the facts and circumstances of the particular case and be ready in a proper case to depart from any applicable policy”: Durani v Minister for Immigration and Border Protection (2014) 314 ALR 130 at [79] (Besanko, Barker and Robertson JJ).
43 Suppose the Minister adopted a three-stage policy: first, that in every case the Minister would have regard to likelihood of future criminal conduct, notwithstanding a lack of obligation to do so; second, that in every case it would be concluded that the risk of further offending could not be ruled out; third, that in every case an inability to rule out a risk of further offending would preclude a favourable exercise of discretion. In my opinion, such a policy would fetter the Minister’s discretion and would not be saved by any lack of legal obligation to have regard to the likelihood of future criminal conduct.
44 But this is not such a case. As I have explained above, I have no basis for concluding that a favourable outcome was necessarily denied to the applicant by reason of the Minister’s inability to rule out the risk of re-offending. Indeed, the contrary seems to me to be true: the Minister weighed that factor against many others, which would not have been necessary if the inability to rule out risk was determinative against the applicant.
45 It is not necessary that I separately address the second part of the Minister’s second submission, namely that the Minister was entitled to conclude that any risk of re-offending was unacceptable. I do not think that that submission grapples with the Minister’s actual reasoning in this case. It suffices for me to say that the exercise in which the Minister actually engaged did not constitute a fetter, for the reasons I have given above. Whether some other form of reasoning—involving the bare proposition that any risk of re-offending would be intolerable—would constitute a fetter, is not necessary to decide.
Ground 3: Failure to take into account custodial status
46 The applicant alleged that his custodial status “shortly before his decision” was a mandatory relevant consideration, in the sense contemplated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. In a well-known passage, Mason J said the following, at 39–40 (citations omitted; emphasis added):
(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision. The statement of Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, that a decision-maker must take into account those matters which he "ought to have regard to" should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion "must call his own attention to the matters which he is bound to consider".
(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.
47 The applicant relied in particular upon s 501(3A)(b). By that provision, it is a necessary precondition to a mandatory visa cancellation that the visa-holder be serving “a sentence of imprisonment, on a full-time basis in a custodial institution”. The applicant submitted that “the purpose behind s 501(3A) is to protect the community by preventing the release of a person from prison pending an informed decision on their visa status”. Therefore, the applicant submitted, it was implied that the person’s custodial status was a mandatory relevant consideration. And, the applicant submitted, the applicant’s custodial status had not been taken into account by the Minister, so that her decision was vitiated by jurisdictional error.
48 The Minister, conversely, submitted that the applicant’s custodial status had, in fact, been taken into account. Alternatively, the Minister submitted that “it is highly doubtful that the particular matters identified by this ground of review could be characterised as mandatory relevant considerations which are required to be taken into account by the terms of s 501CA(4) of the Act”.
49 The applicant had been imprisoned since October 2000, but from 10 June 2014 to 3 December 2014 he had been placed at the Judy Lazarus Transition Centre (“JLTC”). As described in a letter from the General Manager of the JLTC to the Department dated 3 February 2015, the JLTC is an “intervention that provides opportunities for male prisoners nearing the end of their prison term to visit the community daily to build the skills, knowledge, experiences, resources and supports to enable them to successfully transition back into the community … [I]t is a privileged placement reserved for prisoners who have demonstrated readiness for change and are assessed as low risk to the community”. The applicant was permitted to participate in “weekly visits with his family (Up to 48 hours)”.
50 As earlier stated, the applicant’s visa was cancelled on 12 January 2015. A few days later, on 15 January 2015, he was paroled and transferred to the Maribyrnong Immigration Detention Centre (“MIDC’). The Issues Paper provided to the Minister stated, in paragraph [2], that the applicant had been released from criminal custody and had been taken into immigration detention, and that the applicant had not been involved in any disturbances or major incidents since entering immigration detention. At paragraph [19], reference was made to the applicant’s conduct “whilst in immigration detention”. Paragraphs [95] and [96] summarise the content of the letter from the General Manger of the JLTC, including that it is a “privileged placement” for people “assessed as low risk to the community”. Paragraph [96] specifically refers to the applicant having engaged in “community-based activities”. Paragraph [99] refers to the two years that the applicant spent at Beechworth Correctional Centre, an open farm prison. At [101], there is reference to the applicant having been housed in a low-risk security prison facility, which allowed him to go home for overnight weekend visits and to work in the community. Further reference is made at [105] to the applicant’s involvement in “community-based activities” and the circumstances of his custody.
51 The letter from the General Manager of the JLTC was attached to the Issues Paper. It had been submitted to the Department by the applicant’s legal representatives.
52 At [7] of the Reasons, the Minister said that she had “considered the representations made by [the applicant] and the documents he has submitted in support of his representations”. At [53], the Minister said as follows:
[The applicant] has provided a number of support letters and I especially note the information provided from the Judy Lazarus Transition Centre, where [the applicant] resided between 10 June 2014 and 3 December 2014. During this period [the applicant] was engaged in community-based activities on a daily basis. …
At [58] the Minister noted that the applicant had been “compliant in prison”.
53 The applicant’s submissions in relation to these matters were as follows (emphasis supplied):
The Assistant Minister correctly recorded in the statement of reasons that the applicant was ‘engaged in community-based activities on a daily basis’ during his period at JLTC[, but] there was no reference made to the applicant’s overnight/weekend leave from the prison. In addition, the statement of reasons is wrong when it asserts that the applicant has spent 14 of his 22 years resident in prison in Australia (CB221, [23]).
The proper inference to draw, on a fair reading of the statement of reasons, is that the Assistant Minister failed to take into account the fact that the applicant had resided in the community for periods, soon before the cancellation of his visa. Had the Assistant Minister considered this factor, it is expected that reference would have been made to it at paragraphs [23] and [53] of the statement of reasons.
54 To my mind it seems clear that the Minister was aware of the fact of weekend leave from the JLTC. It was expressly mentioned in the Issues Paper. The letter from which the Minister drew the information contained in paragraph [53], concerning the JLTC, also contained reference to leave extending up to 48 hours.
55 The Minister did take into account the circumstances of the applicant’s detention at JLTC. Express reference was made to the applicant being released daily into the community to engage in “community-based activities”. In my view, it was not necessary for the Minister to have recorded every aspect of the applicant’s detention at the JLTC—including the duration of community leave—in order to demonstrate that the circumstances of the applicant’s detention have been properly taken into account.
56 Assuming for the sake of the applicant’s argument—but without deciding—that it was necessary for the Minister to have had regard to the applicant’s custodial circumstances at a time roughly contemporaneous with his release, the Minister did so have regard. Therefore, ground 3 fails.
Ground 4: The legal consequences of non-revocation
57 While this ground was a late inclusion, it was at hearing the focus of the applicant’s case. Its essence was that the Minister was obliged to take into account the legal consequences of her decision for the applicant, and that—in the case of this applicant—the consequence was that the applicant would be indefinitely detained.
Submissions and relevant authorities
58 The applicant principally relied upon the authority of NBMZ, Le v Minister for Immigration and Border Protection (2015) 237 FCR 516 (“Le”), and NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44.
59 In NBMZ the applicant was a refugee in immigration detention. Australia owed him protection obligations, but he was refused a visa because he failed the s 501 character test, as a consequence of having committed an offence while in immigration detention. As Buchanan J explained at [64]–[65], the applicant thereupon became an unlawful non-citizen with the consequence that his detention under s 189 of the Act was required. Section 198 of the Act required his removal from Australia as soon as was reasonably practicable. However, the applicant could not be returned to his home country because of Australia’s non-refoulement obligations. And, there was no other country that would take the applicant. Accordingly, the applicant faced the prospect of indefinite detention, as considered in cases like Al-Kateb v Godwin (2004) 219 CLR 562.
60 Buchanan J considered, from [80]–[96], the protection afforded to the applicant by art 33 of the Refugee Convention. That article has not been incorporated into domestic Australian law. Nevertheless, as Buchanan J stated at [88], “it has been accepted that Australia would act in accordance with its international obligations in the case of persons to whom the Refugees Convention applied (and while their claims to that effect were being assessed)”.
61 Buchanan J then considered the authorities concerning detention and concluded (at [115]) that the protection of art 33 applied to the applicant because he was a refugee, notwithstanding he had been refused a visa.
62 Allsop CJ and Katzmann J observed that the s 501(1) discretion was unfettered in its terms, but that there were certain limitations on the discretion including, in the case of an applicant for a protection visa, that it was mandatory to consider “the statutory (that is, legal) consequences of visa refusal” (at [6]). As their Honours continued at [9], “[t]he Minister must take into account the Act and its operation in making a decision; to make a decision without taking into account what Parliament has prescribed by way of legal consequence is to fail to take into account the legal framework of the decision”. In the case of NBMZ, the legal consequence was indefinite detention (at [10]). The failure by the Minister to take account of that consequence amounted to jurisdictional error (at [18]).
63 NBNB was handed down on the same day by a Full Court comprising the same judges as NBMZ. At [2], Allsop CJ and Katzmann J referred to and adopted what they had said in NBMZ on the issue of indefinite detention. At [105]–[112] Buchanan J incorporated by reference parts of what he had said in NBMZ. It is convenient to quote from [106]–[109] in particular:
[106] Each applicant is a refugee. Each has no visa. Each must be detained. Each must be removed from Australia as soon as reasonably practicable. However, none must be sent to their country of origin (where they face persecution) or to any other country where the risk of persecution exists or from whence they might be returned to their own country. In no case has a country suitable to send them been identified.
[107] As unlawful non-citizens, therefore, each applicant faces indefinite detention. For reasons explained in NBMZ, it is not relevant to this circumstance that four of the applicants are (like NBMZ) in community detention or that the Minister has discretions under the Act which have not been exercised. The present cases must (like NBMZ) be decided by reference to the legal consequences of the decisions made.
[108] In no case did the Minister, in my view, properly address the circumstance that the legal consequence of his decision was that, under the Act, the applicant in question must be removed from Australia as soon as reasonably practicable (NBMZ at [165]-[167]).
[109] In no case does it appear that the Minister paid any regard to the fact that the consequence of his decision was that, under the Act, the applicant in question faced indefinite detention (NBMZ at [168]-[179]).
64 The applicant relied upon the judgment of Logan J in Le. He relied upon some similarity in the facts – Mrs Le, like the applicant, came to Australia on a refugee visa. In Le the Minister approached the consideration of non-refoulement and indefinite detention in substantially the same way as in the present case, that is, found that it was unnecessary to consider non-refoulement obligations on the basis that Mrs Le was entitled to make an application for a protection visa. In deciding in favour of Mrs Le and setting aside the Minister’s decision, Logan J arguably extended the principles of NBMZ and NBNB such that the requirement to consider non-refoulement obligations applied to applicants who had been historically designated as refugees irrespective of the fact that they remained entitled to apply for a protection visa.
65 Mrs Le had arrived to Australia in 1984 on a Refugee (Vietnamese) Permit, which formed the basis for the parties’ acceptance that she was a refugee for the purposes of the Refugee Convention. The visa the subject of the Minister’s cancellation decision had been a class BB subclass 155 (Five Year Resident Return) visa. Logan J held, at [48], that Mrs Le acquired in 1984 an “accrued right” of non-refoulement to Vietnam, subject to the qualifications found in art 33, for as long as she remained a refugee. His Honour held that it was not necessary for Mrs Le to have claimed that right: “[s]he enjoyed it as an incident of her acceptance by Australia as such a refugee” (at [48]). Logan J noted that it was possible that Mrs Le’s status as a refugee had been lost (at [62]), or that she might otherwise be unable to claim the benefit of the non-refoulement obligation (at [63]). However, that was not necessary for his Honour to consider because it sufficed to hold that the Minister had proceeded on the legally-erroneous basis that it was unnecessary for him to consider those matters. “The relevant consideration was whether [Mrs Le] still enjoyed [refugee] status and, even if so, whether by cancelling her visa and rendering her an unlawful non-citizen subject to the duty of removal a non-refoulement obligation would be violated …” (at [64]). Having failed to address those matters the Minister’s decision was infected by jurisdictional error and was set aside.
66 In the instant case, the Minister accepted that it was mandatory to consider the legal consequences of the decision: there was no challenge to NBNB or NBMZ. However, the Minister argued that Logan J in Le travelled beyond the holding in NBNB and NBMZ, that Le was manifestly wrong, and that I should not follow it. The Minister principally relied upon COT15 v Minister for Immigration and Border Protection (No 1) (2015) 236 FCR 148, and upon Ayoub. I will consider Ayoub first.
67 In Ayoub, the relevant issue was whether, where a person did not currently claim to be a refugee, the lawful exercise of a discretion under s 501(2) of the Act required that consideration be given to Australian’s non-refoulement obligations, or the consequence of cancellation being indefinite detention. Flick, Griffiths and Perry JJ held that it was not necessary to determine whether non-refoulement obligations or the prospect of indefinite detention were mandatory considerations for the purposes of s 501(2), because the Minister had in fact considered those matters (at [17]). The Court went on to express the following views in obiter (at [18]–[20]) (emphasis added):
[18] In this context, it may be accepted that the Minister is obliged when considering the plight of a refugee in immigration detention to take into account the “consequences” of his decision: NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [17] per Allsop CJ and Katzmann J. In reaching the same conclusion, Buchanan J there said:
[177] … it is sufficiently apparent, in my view, that the Minister gave no thought to, or alternatively regarded as irrelevant or not significant, that the applicant would, as both a legal and practical consequence of the decision, face the prospect of indefinite detention if a visa was refused.
See also his Honour’s comments at [164]-[166].
[19] NBMZ, however, is no authority for the more generally-expressed proposition that the Minister must take into account when exercising the discretion conferred by s 501 the prospect that a claimant may be exposed to “indefinite detention” at some future point of time dependent both upon possible future applications that may or may not be made and upon future, potentially adverse, exercises of the discretion. The task of the Minister in the present proceeding was to resolve the more confined question of the manner in which the discretion conferred by s 501 should have been exercised. Future exercises of discretion and statutory power are to be resolved when they arise. The fact that the prospect remains open to Mr Ayoub by reason of s 501E to make a future application for a protection visa perhaps provides some support for a conclusion that it is at that future point of time that the prospect of “indefinite detention” may have to be confronted.
[20] On no view of the facts of the present case could it be said that the “consequence” of the cancellation of Mr Ayoub’s visa pursuant to s 501 was “indefinite detention”. The “consequence” of the cancellation decision may well be his detention pursuant to s 189 of the Migration Act — but that “consequence” falls well short of “indefinite detention”. A comparable conclusion was reached by White J in Jaffarie v Director-General of Security (2014) 226 FCR 505 at [126]-[133].
68 COT15 was decided around six months later by a Full Court comprising North, Collier and Flick JJ. COT15 had applied for and was granted a visa. At the time of issue of the visa—December 2010—it was a requirement that the applicant not have a spouse or partner. In May 2012, COT15’s wife applied for a partner visa stating that she married the applicant in August 2011 and that they had two children, one born in 2006 and the other in 2010 when the COT15’s visa application was pending. In August 2013 the Minister notified COT15 that he was considering cancelling his visa including on the basis that COT15 had provided incorrect information in his visa application. In December 2013 the visa was cancelled. COT15 was unsuccessful on review to the Tribunal, and before the Federal Circuit Court.
69 The Full Court identified as the central question “whether the Tribunal, in exercising the discretion to cancel [a] visa, is required to determine whether Australia owes protection obligations to the visa applicant” (at [2]). The Tribunal had been satisfied that a claim that Australia owed the applicant protection obligations could be canvassed in an application for a protection visa (at [16]). The Full Court agreed with the reasoning of the Tribunal and dismissed the appeal. It set out paragraphs [18]–[19] of Ayoub and then stated (at [38]) that “[t]he subject matter, scope and purpose of the Act do not require the Tribunal to take into account as a mandatory consideration the non-refoulement obligations of Australia when determining whether to cancel a visa. The Act contemplates that those obligations will be considered in the context of a protection visa application”.
70 After the hearing of the instant matter, three Full Court judgments of this Court of relevance to the issues here raised, were delivered. It is convenient that I list those judgments in a chronologically reverse order. In Minister for Immigration and Border Protection v Le [2016] FCAFC 120 (“MIBP v Le”), Allsop CJ, Griffiths and Wigney JJ determined the appeal from the judgment of Logan J in Le. That judgment referred to each of the other two Full Court judgments I have in mind – AZAFQ and Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29 (North, Kenny and Perry JJ). After Cotterill was published the parties made further submissions pursuant to my leave.
71 Cotterill was born in 1943 in England and migrated to Australia in 1951 with his parents. He was taken to have been granted an Absorbed Person visa which permitted him to stay in Australia indefinitely, subject to the Act including s 501. Cotterill was sentenced to 12 months’ imprisonment on each of five counts of sexually-based offences involving a child. It was not in issue that Cotterill did not pass the character test. On this basis the Minister considered whether to exercise his discretion to cancel Cotterill’s visa. One of the grounds of appeal involved the allegation that the Minister had failed to take into account a relevant consideration, namely the possible consequence of the decision being that Cotterill might face “prolonged and possibly indefinite detention”, because his health prevented him from travelling back to England.
72 In an Issues Paper given to the Minister the Assistant Secretary of the Department stated that Cotterill’s medical condition was such that “it [was] possible that in the event of a cancellation he may not be able to be returned to the United Kingdom due to his health condition and would face prolonged and possibly indefinite detention” ([42] (North J)). The Minister argued that NBMZ was distinguishable on the basis that indefinite detention in that case was a necessary legal consequence whereas in Cotterill the prospect of indefinite detention arose from practical considerations.
73 North J decided the issue in favour of Cotterill. In particular, his Honour held, at [107], as follows:
Then, the Minister submitted that in NBMZ indefinite detention was a legal consequence of the Minister’s decision whereas in the present case that consequence was a practical but not legal consequence. However, Buchanan J at [177] drew no distinction between the two, and the majority agreed with him. Further, in principle there is no basis for a distinction. In NBMZ the potential of indefinite detention arose from the lack of any destination for removal and in the present case that potential arose from the state of the appellant’s health. But in both cases, those practical factors resulted in the possibility of indefinite detention by reason for the legal requirement of the statute to detain a non-citizen who does not hold a visa. That is to say, in both cases, there existed a practical situation which had a legal consequence.
74 Kenny and Perry JJ likewise held that the Minister fell into jurisdictional error in failing to take account of the possibility of indefinite detention. At [133], their honours observed that another difference between Cotterill’s case and NBMZ was that in NBMZ it was virtually certain that indefinite detention would be the consequence of a cancellation decision. In the case of Cotterill, “the material before the Minister did not show that it was virtually certain” that it would not be reasonably practicable to remove Cotterill if his visa were cancelled. Rather, the material indicated that there was a “real possibility” of ill health preventing travel. That did not, however, “affect the Minister’s obligation to take into account the legal consequences of his proposed decision”. Their Honours concluded thus: “[t]he Minister was obliged in this case as in NBMZ to take into account that the material before him disclosed that the appellant’s indefinite detention was in prospect if he cancelled the appellant’s visa, as a consequence of ss 189, 196 and 198 of the Migration Act”.
75 The applicant relied upon Cotterill to support his contention that the Minister was required to consider the legal consequences of the decision made, namely, that if the applicant could not be removed because of non-refoulement obligations then he faced the prospect of indefinite detention. The applicant contended that as indefinite detention for him was in prospect, the Minister was obliged to take that into account. That obligation was said to be unaffected by the capacity of the applicant under s 501E of the Act to make an application for a protection visa.
76 The Minister accepted that the holding in Cotterill was that whether the appellant (in that case) might suffer indefinite detention if his visa were cancelled was a relevant consideration which the Minister was bound to take into account. The Minister’s submission acknowledged that the Court in Cotterill “did not embrace a distinction between legal and practical consequences” in determination of whether indefinite detention was in prospect. The submission also recognised that a “real possibility” rather than virtual certainty of indefinite detention (as in NBMZ) was sufficient to enliven the Minister’s obligation to take the prospect of indefinite detention into account. The Minister nevertheless contended that the applicant did not face a “real possibility” of indefinite detention as a consequence of the decision to cancel his resident return visa. That was so, it was contended, because the applicant may be granted a protection visa; an application for such a visa not being precluded by s 501E(2)(a) of the Act. It was said that in contrast to Cotterill, here, because of the applicant’s capacity to apply for a protection visa, there was a possibility that the applicant’s legal status might alter to that of a lawful non-citizen so as to bring his detention to an end. The Minister also contended that the reasoning in NBMZ and Cotterill had no application to the present case because there “was no legal ‘stalemate’ between the obligation to detain and any inability to remove from Australia”. Further, the Minister contended that, in any event, she did not in fact fail to consider “the relevant legal and practical consequences of the cancellation decision”.
77 I turn then to consider MIBP v Le. Insofar as there may have been inconsistency in the Full Court judgments to which I have so far referred, that has now been reconciled by MIBP v Le wherein Allsop CJ, Griffiths and Wigney JJ considered each of those authorities as well as AZAFQ. Their Honours held that Logan J erred in holding that “Australia’s obligation not to refoule Ms Le was a mandatory consideration in the particular circumstances of Ms Le’s case when the Minister was considering whether or not to exercise his discretion to cancel her visa”. At [41], their Honours continued:
In our view, this was not a mandatory relevant consideration under s 501(2) in circumstances where it remained open to Ms Le to make an application in Australia for a protection visa, at which point compliance with Australia’s non-refoulement obligations (and the prospect of her indefinite detention) would have to be considered by the Minister. It is critical to this analysis that, as the Minister acknowledged in both [48] of his statement of reasons and in his submissions to the Court, there is no legal impediment to Ms Le applying in Australia for a protection visa
78 Their Honours thereafter considered the relevant Full Court authorities and whilst noting that it would be unwise to be overly prescriptive in summarising the relevant legal principles, the Court provided the following “non-exhaustive summary” of some of those principles at [61], as follows:
(a) in determining whether or not to exercise the powers in s 501(1) or (2) of the Migration Act, the decision-maker must take into account the legal consequences of the decision made under either of those provisions;
(b) those legal consequences may include the prospect of the affected person being held in indefinite detention because of the operation of ss 189, 196 and 198 of the Migration Act;
(c) the test is whether, on the basis of all the material which is before the decision-maker at the time of considering whether or not to exercise the powers in s 501(1) or (2), there is at least a real possibility that the person’s removal from Australia would not be reasonably practicable with the consequence that the person faces the prospect of indefinite detention by operation of ss 189, 196 and 198 of the Migration Act;
(d) the factual circumstances which can give rise to the prospect of indefinite detention can vary considerably – for example, that real possibility may exist because Australia owes the person protection obligations and there is no other country to which the person can be removed consistently with Australia’s non-refoulement obligations. Or there may be some other reason which is personal to the individual concerned as to why that real possibility exists, such as the state of the person’s health, which affects the duty under s 198(6) to remove the person as soon as reasonably practicable;
(e) in determining whether or not to exercise the powers in s 501(1) or (2) of the Migration Act, Australia’s non-refoulement obligations and the prospect of indefinite detention are not mandatory considerations in circumstances where it is open to the person whose visa has been refused or cancelled on character grounds to apply in Australia for a protection visa or some other visa (which visa application the decision-maker is legally bound to consider and determine) and the consideration of the visa application must involve regard being paid to the prospect of indefinite detention if the visa is refused;
(f) this position is generally unaffected by the presence in the Migration Act of various provisions which confer personal powers on the Minister to “lift the bar” (such as s 48B) or to grant a visa to a detainee which would have the effect of changing the detainee’s status from being an unlawful non-citizen (such as s 195A). There is no legal duty on the Minister to consider whether to exercise such a personal power, whether he or she is requested to do so by any person or in any other circumstances (see, for example, ss 48B(6) and 195A(4)). Hence there is no assurance that the Minister will even consider whether or not to exercise such a personal power, with the consequence that there is no assurance that any consideration will subsequently be given in a relevant case to Australia’s non-refoulement obligations or the prospect of indefinite detention. This difficulty may be overcome in a case where, at the time consideration is being given to the exercise of the powers under s 501(1) or (2), there is some material which indicates the real possibility of the Minister exercising his or her personal powers in favour of the affected person; and
(g) the position is also different where, in a case such as NBMZ or NBNB, the person whose visa application has been refused or whose visa has been cancelled under s 501(1) or (2) respectively is prevented by the Migration Act from applying in Australia for a protection visa. In such a case, the Minister’s obligation to consider the legal consequences of a decision in the circumstances under either of those provisions will include consideration of Australia’s non-refoulement obligations and the prospect of indefinite detention, where those matters are relevant to the person’s particular circumstances.
Discussion
79 The Minister stated at [21] of the Reasons that “[the applicant’s] circumstances may give rise to international non-refoulement obligations”. Those circumstances were described at [18] and [19] of the reasons as follows:
[18] [The applicant] has made claims that may give rise to international non-refoulement obligations. [The applicant] initially arrived in Australia on a Class XB Subclass 200 (Refugee) visa and as he came to Australia as a refugee, he is afraid that if he returned, he will be seen as someone who has betrayed Vietnam by fleeing. He stated that he doesn’t “even sound the same”. He is also afraid because of his criminal history in Australia.
[19] [The applicant’s] representative has stated that as a person who previously fled Vietnam illegally and was a recognised refugee, [the applicant] would be perceived by the Vietnamese authorities as a person who opposes the government and that such persons are likely to face ill treatment amounting to persecution in Vietnam. She has stated that the continued arrival of asylum seekers by boat from Vietnam demonstrates that the fears which caused [the applicant] and his family to leave Vietnam over 20 years ago are still current.
80 At [21] of the reasons, the Minister concluded that (emphasis added):
[21] While [the applicant’s] circumstances may give rise to international non-refoulement obligations, he is able to make a valid application for another visa. In particular, I note that [the applicant] is not prevented by s501E of the Act from making an application for a Protection visa. Thus it is unnecessary to determine whether non-refoulement obligations are owed to [the applicant] for the purposes of this decision.
81 Neither expressly nor constructively did the Minister address the prospect of indefinite detention as a legal consequence of the non-revocation decision. In substance, the need to engage with that consideration was regarded as “unnecessary” for the purposes of that decision. Fairly read, the Reasons show that the Minister proceeded on the basis that because the applicant had a capacity to make an application for a protection visa, the occasion for considering indefinite detention had not yet arisen.
82 That the Minister took that approach is confirmed by Ministerial Direction 65 (“the Direction”). The purpose of the Direction is to guide decision-makers exercising powers of visa refusal and cancellation, including revocation requests under s 501(3A) of the Act. The Direction was included in the Issues Paper provided to the Minister for her consideration. The Direction is not binding on the Minister when making a decision personally, as here, but the approach taken by the Minister in her Reasons as to whether the circumstance had arisen for an assessment to be made about the prospect of indefinite detention is consistent with the approach required of the Minister’s delegates by the Direction. Counsel for the Minister accepted that the Minister had adopted the approach laid out by the Direction.
83 The terms of Part 14 of the Direction, and in particular clauses 14.1(4)–(6), make it apparent that the accepted approach, followed by the Minister in this case, was to not consider the prospect of indefinite detention as a consequence a non-revocation decision in circumstances where the non-citizen is able to make a valid application for another visa if the mandatory cancellation is not revoked.
84 It is clear that the Minister did not consider whether there was a real possibility that the applicant might be indefinitely detained as a consequence of the non-revocation decision. The test outlined in principle (c) in the summary of the relevant principles in MIBP v Le was not applied. However, by principle (e) the Full Court made it clear that, in circumstances where it is open to a person whose visa has been refused or cancelled on character grounds to apply in Australia for a protection visa and the consideration of that visa application must involve regard being paid to the prospect of indefinite detention if the visa is refused, Australia’s non-refoulement obligations and the prospect of indefinite detention are not mandatory considerations in determining whether or not to exercise the powers in s 501(1) or (2) of the Act.
85 It is clear that on the facts of this case and the principles enunciated in MIBP v Le, that the applicant may apply for a protection visa and that a consideration of that application must involve regard being paid to the prospect of indefinite detention if the application for that visa is refused. In those circumstances, the application of the principles enunciated in MIBP v Le requires me to reject the applicant’s contention that the Minister was bound to consider Australia’s non-refoulement obligations and the prospect of indefinite detention in making the non-revocation decision. Whilst those principles and the authorities to which I have referred dealt with the exercise of the powers in s 501(1) or (2) of the Act, it was not contended and I see no basis for any relevant distinction to be drawn in relation to the exercise of power under s 501CA(4). Accordingly, the applicant’s fourth ground must also be dismissed.
86 I would make one further observation on the subject of ground 4. As I have set out above, the Minister in her Reasons determined to not take into account, for the purposes of this decision, the prospect that the applicant would face indefinite detention at this time, on the basis that account may be had in the course of an application for a protection visa at a later stage. For the reasons I have given, that approach is free of error. Whilst the approach is not erroneous, the Minister’s decision to defer consideration of the prospect of indefinite detention may nevertheless lead to substantive unfairness to the applicant if other considerations relevant and favourable to the applicant are not also considered in the applicant’s favour in any future determination. To be clear, in adverting to the potential for substantive unfairness which could arise from the Minister’s decision to deal with the applicant’s prospect of indefinite detention at a later time, I do not intend to foreshadow that any such substantive unfairness in any future decision would amount to a legal error.
87 The substantive unfairness I have in mind may arise from the application of the terms of the Direction to any future decision, insofar as such application would mandate the balancing of different relevant considerations to those considered in the decision presently under review. Whereas in the present case, the Minister, consistent with the Direction as it relates to revocation decisions (at cl 14.2), considered all of the applicant’s ties to Australia, a delegate determining the refusal of a visa, including a protection visa, under the Direction (at cl 12.2) is bound to consider only the applicant’s family members in Australia. It would be unfortunate if, in the context of any future protection visa application, an important consideration favourable to the applicant was lost simply by reason of the Minister’s capacity to defer consideration of indefinite detention to a later time.
Conclusion
88 I have dismissed each of the applicant’s four grounds and will order that the application be dismissed. No submissions were made on the subject of costs. Subject to reserving to the applicant the opportunity to seek a different order as to costs, I will make an order that the applicant pay the Minister’s costs of the application.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. |
