FEDERAL COURT OF AUSTRALIA

BRK15 v Minister for Immigration and Border Protection [2016] FCA 1570

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue, quashing the 6 July 2015 decision of the Assistant Minister for Immigration and Border Protection to refuse to grant the applicant a protection (class XA) visa under s 501(1) of the Migration Act 1958 (Cth).

2.    A writ of prohibition issue, prohibiting the respondent and his delegates, servants and agents from acting upon or giving effect to the decision.

3.    The application by the applicant for a protection (class XA) visa be reconsidered by the respondent according to law.

4.    The parties have liberty to apply on or before 17 February 2017 on the question of costs.

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

REASONS FOR JUDGMENT

GILMOUR J:

1    On 6 July 2015, the Assistant Minister for Immigration and Border Protection, Senator the Hon Michaelia Cash (Minister), refused the applicant’s application for the grant of a Protection (Class XA) visa. The applicant seeks judicial review of this decision which he contends is affected by jurisdictional error. Jurisdiction, in this respect, is conferred on this court by s 476A(1)(c) of the Migration Act 1958 (Cth).

2    The Minister found that "there is an ongoing risk of (the applicant) reoffending" and, in reaching her decision to refuse the applicant’s application, concluded that he represents an unacceptable risk of harm to the Australian community. It is accepted that the applicant, who is a citizen of Tanzania, is owed non-refoulement obligations by Australia. Thus he cannot be repatriated to Tanzania. No other country, it seems, suitable to take him, has been identified. Accordingly, there is no realistic prospect of his removal from Australia in the foreseeable future.

3    The result of this decision is that the applicant is subject to indefinite immigration detention in Australia by reason of the operation of ss 169 and 196 of the Migration Act.

Factual and procedural background

4    The following background, which is not controversial, is substantially drawn from the written submissions filed on behalf of the Minister.

5    The applicant arrived in Australia on 28 August 2009 as the holder of a Temporary Business Entry (Class UC) visa.

6    Upon arrival, the applicant underwent routine processing by Customs officers at Sydney's Kingsford Smith airport. He was found to be carrying a number of cylindrical pellets which were later found to contain cocaine.

7    The applicant was arrested, charged and on 22 October 2010 convicted in the District Court of New South Wales in Sydney of the offence of 'import/export marketable quantity of border controlled drugs or plants'. He was sentenced to imprisonment for 7 years and 2 months.

8    The applicant was granted a Bridging E visa on 1 April 2011 and a further such visa on 13 April 2012 to regularise his status while serving his prison sentence. The second Bridging E visa expired on 26 November 2013.

9    On 27 November 2013 the applicant was released on parole from prison and placed in immigration detention at Villawood Detention Centre. At the time of the hearing in this Court he was located at the Immigration Detention Centre at Yongah Hill in Western Australia.

10    On 18 December 2013 the applicant lodged an application for a Protection (Class XA) visa (protection visa) with the Department of Immigration and Border Protection (the Department). The application was supported by a statutory declaration made by the applicant on 5 December 2013.

11    On 8 September 2014 the applicant was sent, by email, a notice of intention to consider refusal of his visa application under s 501(1) of the Migration Act. The applicant responded to the notice with submissions and character references.

12    On 13 April 2015 the Department sent by email a letter to the applicant advising him that since the notice dated 8 September 2014 the Minister for Immigration and Border Protection had issued a new Ministerial Direction 65, a copy of which was enclosed, and that Part B identifies the considerations relevant to visa applicants. The letter also advised of amendments to the Migration Act, including amendments to the character test under s 501, and copies of the amendments were enclosed. The applicant was advised that any response that he made should be received by the Department within 14 days of the date of transmission of the letter, but no further response was received from the applicant.

13    The Department subsequently prepared a submission to the Minister for Immigration and Border Protection for her consideration as to whether the applicant's application for a protection visa should be refused under s 501(1) of the Migration Act.

14    On 6 July 2015 the Minister decided to exercise her discretion under s 501(1) of the Migration Act to refuse the applicant's application for a protection visa, and signed a statement of reasons for that decision (Reasons). The applicant was advised of the Minister's decision by letter dated 8 July 2015.

15    On 10 August 2015 the applicant filed an application in the Federal Circuit Court of Australia for judicial review of the Minister's decision. The respondent objected to the jurisdiction of the Federal Circuit Court to hear the application but consented to orders which were made by Judge Lucev on 6 April 2016 transferring the proceedings to the Federal Court of Australia pursuant to s 39 of the Federal Circuit Court of Australia Act 1999 (Cth).

16    On 7 June 2016 the applicant filed an amended application dated 27 May 2016 and an affidavit affirmed by him on 3 June 2016.

Minister's Reasons for decision

17    The Minister noted that as a result of the applicant's sentence of imprisonment following his conviction on 22 October 2010, the applicant had a substantial criminal record, and found that he did not pass the character test by virtue of s 501(6)(a) of the Migration Act, with reference to s 501(7)(c).

18    In considering whether to exercise her discretion to refuse the applicant's visa application, the Minister made the following findings and statements:

(1)    The applicant's type of offence was serious, as it contributed significantly to the major problem of crime arising from drug abuse in the community.

(2)    Should the applicant again become involved in offending related to the importation of drugs, his actions could contribute significantly to the supply of illicit drugs in the Australian community, with resultant negative impacts on the use of such drugs, drug-induced criminal offending and downstream community costs in terms of law enforcement and health.

(3)    The applicant had expressed remorse for his offending and wished to become a productive member of society, and his conduct in prison and detention has been compliant.

(4)    She had some concerns about the applicant's insight into his offending in light of his recent claims that his offending was entirely attributable to compulsion by others, noting that the court found, partly based on his own statements and submissions made by his counsel, that he had engaged in criminal activity because he was seeking money to fund his own and his family's pressing medical and other support needs.

(5)    The available information indicated that the applicant's need to support his family was ongoing, and she was of the view that his physical impairment and very limited personal support in Australia would reduce his prospects of finding employment here.

(6)    There was an ongoing risk of the applicant reoffending.

(7)    The community would consider it appropriate to refuse the visa application of a person such as the applicant.

(8)    The Department had found that the applicant is owed 'complementary' protection, and that Australia has non-refoulement obligations towards the applicant which meant that he could not be removed to Tanzania. The applicant would be able to be removed to a country other than Tanzania but there was currently no known prospect of removal to such a country.

(9)    If refused a protection visa, then pursuant to ss 501E and 48A of the Migration Act the applicant would be unable to apply for any other visa, except for a Bridging R (Class WR) visa, unless the Minister lifted the bar on a protection visa application pursuant to s 48B(1) of the Migration Act.

(10)    If a decision was made to refuse the applicant's application for a protection visa he would not be removed from Australia, and he would face the prospect of indefinite immigration detention due to the operation of ss 189 and 196 of the Migration Act.

(11)    She was aware of, and had had regard to, the existence of a non-refoulement obligation in this case, and had carefully weighed this factor against the seriousness of the applicant's criminal offending in the making of her decision whether to refuse his protection visa application.

19    The Minister concluded that the applicant represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations and, in particular, Australia's non-refoulement obligations towards him and the possibility that he would have to remain indefinitely in immigration detention.

20    Accordingly, the Minister decided to exercise her discretion to refuse to grant the applicant's application for a protection visa under s 501(1) of the Migration Act.

Grounds of application

21    The applicant's amended application sets out only one ground of application as follows:

(1)    The Minister erred in finding that there was an ongoing risk of reoffending by reason of the Applicant's physical impairment reducing his prospects of finding employment, in that the Minister:

(a)    did not take into account the provisions of the Disability Discrimination Act 1992 (Cth); and/or

(b)    failed to assess the Applicant's prospects of obtaining employment of a kind for which his injury was irrelevant.

Ground 1(a) - Failure to take into account the provisions of the Disability Discrimination Act 1992 (Cth)

22    This ground concerns the Minister's consideration of the protection of the Australian community and the risk of the applicant reoffending: Minister’s Reasons [12]-[17]. The Minister took into account, at [15], that the applicant had engaged in criminal activity because he was seeking money to fund his own and his family's pressing medical and other support needs. She noted that these financial needs were ongoing and then observed that "his physical impairment (left knee injury) and very limited personal support in Australia would reduce his prospects of finding employment": Reasons [16].

23    The decision to refuse the application was based, at least in part, on the view that his physical impairment would reduce his prospects of finding employment in Australia thereby posing an unacceptable risk of harm to the Australian community, by way of a risk of reoffending.

24    Section 15 of the Disability Discrimination Act provides that:

15 Discrimination in employment

(1)    It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person's disability:

(a)    in the arrangements made for the purpose of determining who should be offered employment; or

(b)    in determining who should be offered employment; or

(c)    in the terms or conditions on which employment is offered.

25    Whilst it seems that the degree of the applicant’s knee disability is significantly less than it was, I am prepared for the limited purpose of considering this argument to accept that the applicant has a disability for the purposes of the Disability Discrimination Act, due to an accident which caused his knee to malfunction, resulting in a physical impairment.

26    Pursuant to s 15(1)(b), it is unlawful for an employer to discriminate against a person on the ground of the other person's disability in determining who should be offered employment.

27    Accordingly it may be accepted that an employer denying the applicant employment on the basis of his disability would contravene s 15(1)(b) of the Disability Discrimination Act and would be acting unlawfully, unless an exception in s 21A (relating to an ability to carry out the inherent requirements of the particular work) or s 21B (relating to unjustifiable hardship in avoiding the discrimination) were to apply.

28    The applicant contends that there was no rational basis for the Minister's finding of fact in this respect as there was no evidence before the Minister to suggest that employers would be willing to contravene s 15 of the Disability Discrimination Act to avoid offering employment to the applicant.

29    Thus, the applicant submits, the conclusion that his physical impairment would reduce his prospects of finding employment in Australia was "irrational, illogical and not based on findings or inferences of fact supported by logical grounds".

30    He submits that this is not a case where there is probative evidence which can give rise to different processes of reasoning, such that logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence.

31    He then submits that a conclusion that Australian employers would contravene s 15 of the Disability Discrimination Act to avoid offering the applicant employment, in the absence of any probative evidence to that effect is simply not open to a decision-maker acting reasonably, logically or rationally.

32    I reject these submissions for a number of reasons. First, an employer will not contravene s 15(1)(b) in the circumstances set out in ss 21A and 21B. Second, the Disability Discrimination Act does not apply to non-corporate employers. Accordingly, it is a fact that a person with a disability does, compared with someone otherwise on an equal footing but who is not physically impaired, encounter reduced prospects of employment notwithstanding the provisions of s 15(1)(b).

33    In any event, I accept as correct the Minister’s submission that the provisions of the Disability Discrimination Act were not mandatory relevant considerations which the Minister was obliged to take into account, having regard to the subject matter, scope and purpose of s 501 of the Migration Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J.

34    Subsection 501(1) of the Migration Act does not state what factors the Ministers is bound to consider in exercising the discretion of whether or not to refuse to grant a visa on character grounds. Certain matters have been held to be relevant considerations to be taken into account, such as the legal and practical consequences of a decision to refuse to grant a visa pursuant to s 501(1): NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [17], [177]-[179].

35    The statement made by the Minister, that the applicant’s physical impairment combined with his very limited personal support in Australia would reduce his prospects of finding employment here, ought not be read as premised on the assumption of a necessary contravention of the Disability Discrimination Act by prospective employers.

36    I conclude that the provisions of this Act were not required to be taken into account by the Minister and in any event that the applicant’s underlying premise concerning this Act in relation to the statement made by the Minister is flawed for the reasons I have explained.

37    No jurisdictional error is manifested by the Minister in not having regard to the Disability Discrimination Act in making the impugned statement.

Ground 1(b) - Failure to assess the applicant's prospects of obtaining employment of a kind for which his injury was irrelevant

38    This ground concerns the same statement by the Minister at paragraph [16] of her Reasons:

16.    I note that the available information indicates that his need to support his family is ongoing and I am of the view that his physical impairment and very limited personal support in Australia would reduce his prospects of finding employment here.

39    Whilst this ground does not say so in clear terms this ground both in written and oral submissions was argued upon the basis that he was denied procedural fairness which constituted jurisdictional error. Counsel for the Minister expressly eschewed taking any point that the ground was not clearly identified in the amended application. The applicant submitted that he was not afforded the opportunity to give evidence regarding his employment history and that consequently the Minister did not take into account relevant material which ought to have been taken into account.

40    There is no issue that, where the power under s 501(1) of the Migration Act is exercised, the individual concerned must be afforded natural justice: see e.g. Minister for Immigration and Multicultural and Indigenous Affairs v Watson (205) 145 FCR 542 at [52]; Roach v Minister for Immigration and Border Protection [2016] FCA 750 at [18].

41    The applicant was entitled to be appraised of any relevant matters adverse to his interests, which the Minister proposed to take into account in the exercise of the power under s 501(1) of the Migration Act. He was entitled to be given the opportunity to respond to any such matter.

42    Central to the Minister’s finding in her Reasons at [17], that there was an ongoing risk of the applicant reoffending, was what is set out in those Reasons at [16]. The connection between her findings as to the ongoing need to support his family, his reduced prospects of finding employment in Australia and the perceived risk of reoffending is obvious enough; if he is unable to gain employment by reason of his disability to earn sufficient money to support his family there is a risk that he will return to criminal conduct involving illicit drugs to fill the financial gap.

43    This conclusion was reached notwithstanding that the Minister in her Reasons at [14] acknowledged that the applicant had expressed remorse for his offending and wished to become a productive member of society. She also there acknowledged that his conduct in prison and detention (over nearly five years) had been compliant.

44    It is of significance that in his sentencing remarks in the District Court of New South Wales, Judge Walmsley SC found that he played the role of drug courier with no other interest in the imported drugs and that he was not motivated by personal greed but because he needed money to help his family with medical bills and the like. There was no evidence of other offending. His Honour also concluded that the applicant had good prospects of rehabilitation.

45    These sentencing remarks serve only to highlight just how critical to the Minister’s decision was her finding at [16] of her Reasons concerning his reduced prospects of employment linked as this was to the finding that he was a risk reoffending.

46    The Minister submits that the applicant was invited to respond to a letter from the Department dated 8 September 2014 advising of the Minister's intention to consider whether his protection visa application should be refused under s 501(1) of the Migration Act, and specifically to provide information and comments in relation to "any information that you feel the decision-maker ought to be aware of and take into account in deciding whether the discretion to refuse your visa application should be exercised". The Minister points out that this letter set out the information upon which the Minister might rely, which included information concerning injury to the applicant’s knee.

47    These did not, in my opinion, and as the applicant submits, afford him procedural fairness. The applicant was not to know that the Minister would connect information concerning his disability and the risk of his reoffending in the central and critical way in which she did. None of the information provided to the applicant was to the effect that by reason of his disability his prospects of gaining employment were reduced or that this was relevant to consideration of the risk of his reoffending and, in turn, relevant to the exercise of the statutory power.

48    Procedural fairness requires a decision maker to identify for the person affected any critical issue not apparent from the nature of the decision or the term of the statutory power. The decision maker must also advise of any adverse conclusion which would not obviously be open on the known material: Minister for Immigration and Citizenship v SZGUR [2011] 241 CLR 594 at [19].

49    Had the issue of his employability been notified to the applicant as a potential reason for an adverse finding concerning his visa application, I do not think it can be doubted that he would have put material relevant to this before the Minister.

50    Indeed, to demonstrate that he would most likely have done so, the applicant before this Court relied upon his affidavit affirmed on 3 June 2016 in the following terms:

I Joseph Maiko MHINA affirm:

(1)    I am the Applicant in these proceedings.

(2)    Before I came to Australia I worked as a welder and then as a truck driver.

(3)    After my conviction I served 4 years and 3 months sentence in prison. First, I was sent to Silverwater prison. I stayed there for 3 weeks. I was transferred to Parklea prison. I stayed there for 6 months. During that time I worked there as an engineer in the welding department. We built trailer chassis for Fire Brigade trailers. This work was done by me and others. I worked with for 4x4 pipe and 20 metre length pipes. I cut the 20 metre pipes with a band saw. I lifted the pipes with others to weld the chassis. I lifted tires to fit on the chassis. When the trailer was complete I pushed the trailer each weighed around 450 kg to the painting area which was about 20 metre away. I used to work 5 days a week from 7 a.m. till 2 p.m.

(4)    After that I was again sent to Silverwater prison. I stayed there for 2 months. I worked there as a tailor 5 days a week from 7 a.m. till 2 p.m. sewing prison uniforms.

(5)    After that I was sent to Long Bay hospital for 9 months for treatment for my knee. I had an x-ray on my knee and I was given the all clear as no problem was found. I did not work but I participated in soccer and I went to the gym and sometimes played basketball and did a bit of running. I participated in gym and sport activities almost every day.

(6)    After that I was sent to Parramatta CC. I stayed there for 2 months. I worked there for Kambrook recycling. I worked recycling kitchen equipment like microwaves, sandwich makers, toasters and blenders. I participated in lifting wooden pallets, pushing trolleys and I carried my toolbox. I worked from about 7 a.m. to 2 p.m. and then from about 2 p.m. to 4 p.m. I went to the gym.

(7)    After I was sent to Nowra CC. I stayed there for 3 years. I worked there as an engineer in welding department. Because of my expertise in welding, I was a group leader, sort of like a supervisor. I sued to work 5 days from 7 a.m. till 2 p.m. Sometimes due to extra workload, I worked on Saturdays. I was welding prison beds, prison gates, sheds for the prison, metal bins for donations like clothes, shoes and other items. I also participated in making hooks, trailers and fences used in construction sites. I carried 2 inch pipes 20 metre for cutting then welding them for various parts to make beds, gates and bins. I carried 2 x 2 angle iron 20 metres and flat iron 25 metres. I carried wide metal sheets for bins, 2 mm and 4 x 8 size sheets. I also participated in the stock take every month which often meant shifting things to be able to count stock.

(8)    In the last 5 months or so of my time at Nowra, I worked in a kitchen from 7 a.m. till 2 p.m. 5 days a week. I stacked aluminium trays onto trolleys to serve prisoners food. Each trolley carries about 40 trays. I also stacked on boxes of fruits and a trolley could carry about 20 boxes of fruits. Sometimes I also worked overtime in the laundry from 2 p.m. till 4 p.m. in the laundry. We washed and pressed linen from hotels. Linen is heavy.

(9)    After that I was sent to Silverwater minimum security prison. I worked as an engineer from 7 a.m. to 2 p.m. at Silverwater I went back to welding beds and bins for donations and all the work carrying and lifting to do this.

(10)    I was released in November 2013 and taken to Villawood Immigration Detention Centre. I was later moved to Yongah Hill. In Villawood and Yongah Hill there is no work so I participate in sports activities, gym, cooking and baking classes.

(11)    At Yongah Hill I often go on excursions to the swimming pool where I swim and walk outside Yongah Hill.

(12)    My knee feels much better now and I feel have almost fully recovered. My knee is not quite the same as it was but I am able to do the things I want to do.

(13)    Annexed hereto and marked “JMM 1” is a copy of the NSW Department of Corrective Services Inmate Trust Account Statement. This is the only copy I have and shows some of the payments I received for the work in that time.

51    From this it may be seen that he engaged in work whilst in prison, including welding work as well as work requiring considerable strength. He participates in gym activities, soccer and other sport. He has worked also as an engineer in the welding department at Nowra Correctional Centre and as a group leader in welding activities. Importantly he has had treatment for his injured knee whilst in prison and he asserts that he is almost fully recovered. This was relevant to his capacity to work in the community were he to be granted a protection visa.

52    That the Minister regarded the applicant’s disability as being such that his employment prospects were reduced so as to render him at risk of reoffending in order to obtain money was, as I have said, critical to her reasoning process. It was a relevant matter as to which she should have informed the applicant and given him an opportunity to comment on it. This the Minister did not do.

53    The applicant was denied procedural fairness. He has suffered what Gleeson CJ described as “practical injustice”: Minister for Immigration and Multicultural and Indigenous Affairs; Ex-parte Lam (2003) 214 CLR 1 at [37]; see also NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44 at [4] per Allsop CJ and Katzmann J and at [154] per Buchanan J.

54    I would uphold the second ground. The denial of procedural fairness constitutes jurisdictional error on the part of the Minister.

Orders

55    Writs of certiorari and prohibition should for the above reasons issue. There will be an order that the applicant’s application be reconsidered according to law. The parties have liberty to apply on or before 17 February 2017 on the question of costs.

Associate:

Dated:    22 December 2016