FEDERAL COURT OF AUSTRALIA
Chen v Minister for Immigration and Border Protection [2017] FCA 46
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
BURLEY J:
1 By originating application filed on 5 September 2016, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision of a Delegate of the first respondent (respondent) not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth) (Act), a decision made under s 501(3A) of the Act to cancel the applicant’s Resident Return (Class BB) (Subclass 155) Visa (Visa).
2 The applicant is a citizen of the People’s Republic of China. He first arrived in Australia on 21 January 1997 as the holder of a UC456 Visa. Since that time, he has travelled to and from Australia on multiple occasions up until his last arrival on 25 April 2013 as the holder of a Resident Return Visa. The applicant has resided predominantly in Australia for the last 19 years.
3 In 2014, the applicant was convicted of several offences concerning his complicity in a criminal endeavour to forge credit cards, drivers’ licences and Medicare cards and sentenced on 16 December 2014 to an aggregate three year term of imprisonment.
4 On 6 February 2015, the applicant was issued with a notice by the Minister’s Department that his Visa had been cancelled under s 501(3A) of the Act. It is not in dispute that the applicant did not pass the character test in s 501(6)(a) of the Act and that the delegate of the respondent was required to cancel his Visa under s 501(3A) of the Act as a result.
5 The applicant was notified of the cancellation decision and was invited to make representations to the respondent about revocation of that decision pursuant to s 501CA of the Act. The applicant lodged a request for revocation of the mandatory cancellation decision on 3 March 2015. On 29 February 2016, a delegate of the respondent (Delegate) decided under s 501CA(4) of the Act not to revoke the mandatory cancellation. On 17 March 2016, the applicant made an application to the Tribunal for review of the non-revocation decision. Following a hearing conducted on 9 May 2016, the Tribunal affirmed the decision under the review on 19 August 2016.
6 The present proceeding arises from an application for review of the decision of the Tribunal brought by the applicant pursuant to s 476A of the Act. That section relevantly confers original jurisdiction upon this Court where a privative clause decision has been made by the Tribunal on review under s 500 of the Act.
7 The Tribunal noted that the statutory context for the decision of the Delegate arose from failure on the part of the applicant to pass the character test. This gave rise to the question as to whether there was “another reason” why the decision to cancel the applicant’s visa should be revoked (s 501CA(4)(b)(ii) of the Act). The Tribunal recorded that the reason why the applicant had failed the character test was because he was convicted in the NSW District Court of the following offences and was sentenced to an aggregate 3 year term of imprisonment with a non-parole period of 18 months:
deal with identity information to commit etc indictable offence (4 counts);
make, possess etc, equipment etc to make false documents (2 counts);
possess false document to obtain financial advantage (2 counts);
possess prohibited drugs (1 count);
deal with identity information to commit indicatable offences.
8 The Tribunal noted that the power to revoke the decision is discretionary and must be carried out in accordance with Direction no. 65 (Direction) which was made by the Minister on 22 December 2014 pursuant to s 499 of the Act. It then proceeded to summarise the relevant considerations applicable under the Direction. In this regard, the Tribunal referred to Part C of the Direction, which identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa.
9 The Tribunal referred to the three “primary considerations” listed in cl 13(2) of the Directive being:
(a) protection of the Australian community from criminal or other serious conduct;
(b) the best interests of minor children in Australia;
(c) expectations of the Australian community.
10 The Tribunal also referred to the other considerations that must be taken into account, where relevant, which are listed in cl 14, being:
(a) international non-refoulement obligations;
(b) strength, nature and duration of ties;
(c) impact on Australian business interests;
(d) impact on victims;
(e) extent of impediments if removed.
11 The Tribunal noted that the considerations listed above which are not relevant in the current case were; the best interests of minor children, international non-refoulement obligations and impact on Australian business interests. It then proceeded to consider the balance of these considerations in the context of the evidence before it.
12 In relation to the “protection of the Australian community”, the Tribunal noted the applicant’s claim that he had been drawn into the criminal activity for which he was imprisoned, six or nine months after meeting a forger, Mr Stephen Zhong, because the applicant was poor and depressed because of his failed second marriage. People who had copied details of other people’s credit and Medicare cards and driver licenses would meet the applicant, give him money and the information, often including photocopies of cards, which he in turn would give to Mr Zhong. Later, he would give the cards produced by Mr Zhong back to the customer. The applicant received $50 or $100 a time. He was one of many people doing this work for Mr Zhong.
13 The Tribunal found that the criminal conduct of the applicant extended over a period of about three months from June to September 2013. It found that the sentencing judge had described the fraud as “elaborate and effective”. The Tribunal also found in relation to “impact on victims”;
38. … In my view, not only would ordinary people have been hurt by the criminal enterprise in which the applicant participated, including possibly vulnerable individuals such as the elderly or disabled, but the Medicare card aspect of his criminal activity was a fraud on the Australian taxpayer and undermined the integrity of that system. In my view, taking into account all the matters put on behalf of the applicant, I find that the applicant’s criminal conduct was serious.
39. I take into account that the applicant’s sentence was three years when the maximum sentence for such offences was ten years. However, it is relevant that a person has a substantial criminal record if “the person has been sentenced to a term of imprisonment of 12 months or more” (section 501(7)(c)).
14 The Tribunal heard evidence from the applicant, his brother, his former employer, his former employer’s daughter and a psychologist. It considered the evidence of the applicant’s brother and former employer, who expressed “good intentions” about the jobs that they would offer him, but expressed the view that whether those good intentions would be realised was “speculative”.
44. I find that the applicant’s future if he stayed in Australia will be uncertain in terms of employment and income. Given his past vulnerability to participating in criminal activity when he was not earning very much money, I find that there is a risk that he will reoffend if he remains in Australia. His rehabilitation has not been tested because he has not been released into the community. If he does reoffend, there will be potentially significant and irreparable financial and psychological damage caused to members of the Australian community. In making those findings, I have taken into account the evidence from a number of witnesses, including the psychologist, that the applicant is remorseful and that they do not consider that he will re-offend.
16 The Tribunal concluded, having regard to the applicant’s history of drug use, his adverse driving record and other evidence, that the applicant had little regard for abiding by the law before he was convicted of the offences in 2014 and that the protection of the Australian community weighs “significantly” against revocation of the mandatory cancellation of the applicant’s visa.
17 In relation to the next consideration, “the expectations of the Australian community”, the Tribunal found that, taking into account all the circumstances as put on behalf of the applicant, the Australian community would not give the applicant a second chance to remain in Australia. It found that this factor weighed against revoking the mandatory cancellation.
18 The Tribunal then considered the “strength, nature and duration of the applicant’s ties to the Australian community”, and found that these “slightly” favoured revocation, taking into account the applicant’s brother, his sister-in-law, his former employer and his two failed marriages with no children.
19 Finally, the Tribunal considered the “extent of impediments that the applicant would face” if he returned to China. It concluded:
68. I accept that the applicant will face some initial difficulties if he returns to China. However, I do not accept that his prospects are as dismal as was suggested by him, his brother and former employer. I find that their evidence about this matter was exaggerated to assist the applicant’s case to have the cancellation of his visa revoked. I find that the applicant does have friends in China, including the successful business woman who paid for his motel stays in China. That he has been able to live and find work in Australia for 16 years, without much assistance from anyone and without speaking English to any extent, indicates his capacity to find work and live in the country in which he spent the first 31 years of his life, speaks the language, and has friends.
69. This consideration slightly favours revocation of the visa cancellation.
20 Ultimately, the Tribunal concluded that the considerations favouring non-revocation “strongly outweigh” the considerations in favour of revocation, and affirmed the Delegate’s decision.
21 An amended application for review of the decision of the Tribunal was filed on 23 September 2016. In his written submissions in support of the application, the applicant indicated that he no longer pressed grounds 2 and 5(a)(i).
22 Accordingly, the grounds relied upon in this application are as follows:
1. The Tribunal misconstrued the legal basis of its discretion pursuant to s. 501CA(4) of the Migration Act.
Particulars
(a) Error in the finding (at [39] of the Tribunal’s reasons) that the fact that a person has a substantial criminal record in terms of s. 501(7)(c) of the Migration Act is relevant to the exercise of the discretion provided by s. 501CA(4).
(b) The fact that a person has a “substantial criminal record” as defined triggers the possible exercise of the discretion in s. 501CA(4), but is not relevant to its exercise.
…
3. The Tribunal failed to take into account considerations made relevant to the exercise of its discretion by clause 13.1.1 (1) of Ministerial Direction No. 65 issued pursuant to s. 499 of the Migration Act.
Particulars
(a) The frequency of the applicant's offending, and whether there was a trend of increasing seriousness (cl. 13.1.1 (1)(d)).
(b) The cumulative effect of repeated offending (cl. 13.1.1(e)).
(c) Whether the applicant disclosed false or misleading information to the Department (cl. 13.1.1(1)(f)).
4. Failure to make a finding on, and take into account a matter made relevant by clause 13.1.2(2) of Ministerial Direction 65 issued pursuant to s. 499 of the Migration Act.
Particulars
(a) The likelihood of the applicant engaging in further criminal or other serious conduct.
5. The Tribunal breached the requirements of natural justice or procedural fairness.
Particulars
(a) Failure to identify to the applicant conclusions which would not obviously be open on the known material, being;
(i) ….
(ii) That the applicant, despite facing some initial difficulties upon return to [C]hina, would be able to live and support himself there.
23 Subsections 501(1) and (2) of the Act permit the Minister to refuse to grant a visa, or to cancel a visa already granted to a non-citizen, if he or she does not satisfy the Minister that they pass the “character test”. Pursuant to s 501(6)(a) a person does not pass the character test if he or she has a “substantial criminal record” as defined in s 501(7) of the Act. Pursuant to s 501(7)(c) a person has a “substantial criminal record” if he or she has been sentenced to a term of imprisonment of 12 months or more.
24 The applicant does not dispute that he has a “substantial criminal record” for the purposes of s 501(7) of the Act and therefore does not pass the character test.
25 Section 501(3A) provides that the Minister must cancel a visa that has been granted to a person if he or she does not pass the character test because, amongst other things, he or she has a substantial criminal record by reason of a sentence for a term of imprisonment of 12 months or more, and is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of a state. Again, the applicant does not dispute that this situation applies in the present case.
26 The respondent made a decision to cancel the Visa of the applicant and, pursuant to s 501CA(3), gave the applicant a written notice that set out his decision and invited the applicant to make representations about the revocation of the original decision.
27 Section 501CA(4) of the Act provides:
(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.
28 The applicant accepted the invitation of the respondent to make representations about the revocation of the original decision and the Delegate declined to do so. On review the Tribunal declined to revoke the Delegate’s decision.
29 Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. There is no dispute that the Direction was given by the Minister under this section or that the Direction applies to the Delegate. Subsection 499(2A) provides that a person or body must comply with a direction under subsection (1). As a result, the Direction applies to and binds all decision makers performing functions or exercising powers under s 501 of the Act, including the Tribunal; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 at [10] and [55] (per Nicholas, Yates and Griffiths JJ).
30 The Direction sets out in considerable detail the executive’s policy position in relation to cancellation decisions under s 501: the terms of s 499(2A) are the means by which the Government policy in this respect is given mandatory effect. The Direction constitutes a significant constraint on the manner in which the discretion conferred by s 501 is exercised; Williams v Minister for Immigration and Border Protection [2014] FCA 674; (2014) 226 FCR 112 (Williams) at [14] (Mortimer J).
31 A failure to comply with a Ministerial Direction made under s 499 may constitute a jurisdictional error: Williams at [34] (and authorities cited therein).
32 Clause 6 of Section 1 of the Direction contains the preamble. Clause 6.2 sets out what is described as “General Guidance” for decision-makers:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
33 Section 2 of the Direction is entitled “Exercising the discretion” and commences with cl 7, which is entitled “How to exercise the discretion”. It provides relevantly:
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
34 Clause 8 is entitled “Taking the relevant considerations into account” and relevantly provides:
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. …
…
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
(emphasis added)
35 Part C of the Direction is most directly relevant to the present case, and relevantly provides as follows:
Primary considerations – revocation requests
(1) Under subsection 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c)) or paragraph (6)(e)) and the non-citizen 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. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
(2) In deciding whether to revoke the mandatory cancellation of a non-citizen's visa, the following are primary considerations:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
13.1 Protection of the Australian community
(1) When considering protection of the Australian community, decision makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen's conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
13.1.1 The nature and seriousness of the conduct
(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to factors including:
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c) The sentence imposed by the courts for a crime or crimes;
d) The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
e) The cumulative effect of repeated offending;
f) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
g) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);
h) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
36 Clause 14 addresses other considerations relevant to revocation requests and provides:
Other considerations - revocation requests
(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
37 Sub-clauses 14.1 to 14.5 address in more detail each of the considerations set out in cl 14(1)(a)-(e). For present purposes cl 14.5 is of relevance:
14.5 Extent of impediments if removed
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen's age and health;
b) Whether there are substantial language or cultural barriers; and
c) Any social, medical and/or economic support available to them in that country.
4.3 The Legal Basis for review
38 The respondent’s decision is in the nature of a privative clause decision in the Act. It follows that the decision can only be overturned if the respondent’s decision is affected by error going to the power of the respondent to make the decision. The Court cannot investigate the merits of the case before the respondent; Berney v Minister for Immigration and Border Protection [2016] FCA 1544 at [29].
5.1 Tribunal misconstrued basis of discretion pursuant to s 501CA(4) of the Act (ground 1)
39 In ground 1 the applicant contends that the Tribunal misconstrued the legal basis of its discretion pursuant to s 501CA(4) of the Act by, in effect, conflating the threshold question of whether a person has a substantial criminal record within s 501(7)(c) with the separate exercise of discretion in accordance with the Direction. This error is said to have arisen from [39] of the Tribunal’s decision (emphasis added):
I take into account that the applicant’s sentence was three years when the maximum sentence for such offences was ten years. However, it is relevant that a person has a substantial criminal record if “the person has been sentenced to a term of imprisonment of 12 months or more” (section 501(7)(c)).
40 The applicant contends that in the emphasised passage, the Tribunal misunderstood the discretion that it was exercising. The applicant submits that instead of dealing with the quantum of the offence as required in the Direction, the Tribunal has simply reverted to the question of whether the applicant has been sentenced to a term of imprisonment of 12 months or more. It failed to address the applicant’s submissions, set out earlier in the Tribunal’s reasons, which emphasised that he was not a principal organiser of the criminal activity but a “bit” player or “a little higher than a mere conduit” ([37]), that the offences were confined to a period of about three months and took place in the context of a single criminal enterprise, and that although the offences were not at the lowest level of seriousness, they were at the lower range of seriousness (as reflected in the three year sentence with an 18 month non-parole period, whereas the maximum sentence for such offences was ten years).
41 The respondent contends that the Tribunal took into account the seriousness of the applicant’s criminal conduct in considering the protection of the Australian community from criminal or other serious conduct, in accordance with cl 13.1(2)(a) of the Direction.
42 Subsection 501(7) of the Act defines “substantial criminal record” for the purpose of the “character test” in s 501(6)(a). In the present case, it was the applicant’s failure of the character test that led to the revocation of his visa pursuant to s 501(3A) of the Act. It is true that the fact that an applicant has a substantial criminal record falling within the definition in s 501(7) will not of itself necessarily lead to an adverse exercise of the discretion conferred by s 501CA(4). However, a fair reading of the Tribunal’s decision does not lead to the conclusion for which the applicant contends.
43 In fact, it is apparent that the Tribunal took into account the range of discretionary factors set out in cl 13.1 in reaching its conclusion. In this regard the Tribunal expressly referred to cl 13.1 of the Direction and acknowledged that it required decision-makers to give consideration to the nature and seriousness of the non-citizen’s conduct to date, and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
44 The Tribunal also noted; that the criminal conduct of the applicant extended over a period of about three months, that the sentencing judge described the fraud scheme as “elaborate and effective”, that in the Tribunal’s view ordinary people and vulnerable individuals such as the elderly or disabled would have been hurt by the criminal enterprise, that the criminal activity was a fraud on the Australian taxpayer and undermined the integrity of that system, and that as a consequence, the applicant’s criminal conduct was serious.
45 In addition, the Tribunal found that there was a risk of re-offending if the applicant remained in Australia and that the applicant had little regard for abiding by the law before he was convicted of the offences in 2014.
46 In the context of this reasoning, it is apparent that the Tribunal did not permit the language of s 501(7)(c) to eclipse the considerations relevant to the exercise of its discretion pursuant to the Direction.
47 Furthermore, in [39] of its reasons, it is apparent that the Tribunal was referring to and taking into account the applicant’s own submission that he had been sentenced to 3 years imprisonment when the maximum sentence for such offences was 10 years. In that context, the Tribunal was being asked to take into account a question of the quantum of the sentence imposed as an indication that it was at the lesser end of the spectrum of criminality. The final sentence of [39] provided a counterpoint to that submission by indicating that a person would fail the “good character” test with a term of imprisonment of 12 months or more. This is consistent with the observation made in the Full Court in Moana v Minister for Immigration and Border Protection [2015] FCAFC 54 (Moana) (Rangiah J, North J agreeing):
72. … It is implicit in s 501 that Parliament considers that a person who does not pass the character test poses a risk of harm of some kind, although that does not lead to a presumption that the discretion should be exercised in a particular way. …
48 Read in context, it is apparent that the Tribunal was pointing out that whilst the applicant had not received the maximum penalty available in respect of the offences for which he had been convicted, the penalty imposed still exceeded (by a factor of three times) the minimum offence required for a person to fail the good character test. I accept the respondent’s submission that this reference did not foreclose the Tribunal’s assessment of the seriousness of the applicant’s conduct within cl 13.1 of the Direction. Indeed, it is apparent that the Tribunal did consider the exercise of discretion more broadly.
49 Accordingly, ground 1 of the application for review is not made out.
5.2 Failure to take into account relevant considerations (ground 3)
50 In ground 3 the applicant contends that the Tribunal failed to take into account the following three considerations that it submitted were relevant to the exercise of its discretion by operation of cl 13.1.1(1) of the Direction:
(a) the frequency of the applicant’s offending, and whether there was a trend of increasing seriousness (cl 13.1.1(1)(d));
(b) the cumulative effect of repeated offending (cl 13.1.1(e));
(c) whether the applicant disclosed false or misleading information to the Department (cl 13.1.1(1)(f)).
51 The applicant contends that submissions were made before the Tribunal addressing each of matters (a) and (b), but despite those submissions being made, the Tribunal did not address them (I note that the applicant did not before this Court contend in its oral or written submissions that submissions before the Tribunal were addressed to (c)).
52 Part C of the Direction, in cl 13.1.1(1), provides a list of eight factors to which decision-makers must have regard in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct. They are listed earlier in these reasons at [35]. A number are plainly not relevant in the present case, such as (g) (whether the non-citizen has re-offended since being formally warned) and (h) (crime committed whilst in immigration detention). Clearly it is not a requirement for the valid exercise of the discretion that the decision-maker must refer to plainly irrelevant considerations. That common sense observation is supported by cl 8(1) of the Direction which commences with the sentence “Decision-makers must take into account the primary and other considerations relevant to the individual case”.
53 In relation to sub-grounds 3(a) and (b), in my view the applicant does not give sufficient credit to the reasoning of the Tribunal. In its consideration of the nature and seriousness of the applicant’s conduct, the Tribunal stated that “[t]he criminal conduct extended over a period of about three months”. It also made reference to the applicant’s submission that the offences were “not one-off but were confined to a period of about three months and took place in the context of a single criminal enterprise”. Against that background, the Tribunal considered at [38] the fraud scheme, the people who would have been hurt by that scheme, including vulnerable individuals, and the effect of the criminal activity on the Australian taxpayer. It also considered that there was a risk that the applicant would re-offend if he remains in Australia. Having regard to these matters, it cannot be said that the tribunal did not have regard to the considerations identified in cl 13.1.1(1), including the frequency of the applicant’s offending or the cumulative effect of repeated offending.
54 In relation to sub-ground 3(c), the applicant has made no submission to suggest that at the hearing before the Tribunal the provision of false or misleading information to the Department was raised or was otherwise relevant to the exercise of the discretion. The absence of express reference to an irrelevant factor mentioned in cl 13.1.1 of the Direction has not given rise to any error on the part of the Tribunal.
55 Accordingly, I dismiss ground 3 of the application for review.
5.3 Failure to assess the likelihood of engaging in further criminal or other serious conduct (ground 4)
56 In ground 4, the applicant contends that the Tribunal erred by failing to take into account, or making a finding on, the likelihood of the applicant engaging in further criminal or other serious conduct, as it was obliged to do by cl 13.1.2 (2) of the Direction. The applicant submits that the closest that the Tribunal came to considering this issue was at [44] (quoted at [15] above), where it found that there is “a risk that he will reoffend” if he remains in Australia. This was not sufficient, the applicant submitted, because the Tribunal offered no estimate of the likelihood of reoffending. In failing to do so, the Tribunal failed to complete the exercise of its discretion. The applicant further submitted that the language of the Direction itself forms a basis for the Court to distinguish the obligations of the Tribunal (and Delegate) from those of the Minister, exercising his discretion without the constraints of the language of the Direction. That distinction enables the Court to distinguish otherwise binding authority to the effect that an evaluation of likelihood of re-offending is not necessary.
57 The respondent contends that, contrary to the position of the applicant, the language of the Direction provides no point of distinction. He contends that the Court has considered a number of cases concerning the assessment of the likelihood of reoffending in the context of the decision of the Minister to cancel a Visa under s 501(2). Those cases are directly relevant on the present facts. Further, the respondent contends that the Tribunal’s decision indicates that it gave genuine consideration to the applicant’s criminal conduct, aspects of his history, and the “dynamic factors” personal to him which were relevant in performing the assessment.
58 The Direction was given pursuant to s 499 of the Act as directions to the delegate in the exercise of powers, inter alia, to revoke a mandatory cancellation of a Visa under s 501CA. As noted above, the Direction constitutes a constraint on the manner in which the discretion conferred by s 501 is exercised by a delegate of the respondent; Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [42]. That constraint does not apply to the Minister.
59 In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 (BSJ16) Moshinsky J considered the exercise of discretion by the Minister pursuant to ss 501(3A) and 501CA. His Honour noted (at [58], [64]) that there has been extensive judicial consideration of the broad discretion conferred upon the Minister to cancel a Visa pursuant to s 501(2), and that, as with s 501(2), the power in s 501CA(4) is unfettered in its terms. His Honour noted that in the case of each, the effect of an unfavourable decision is that a person will not have a visa (or the relevant visa) on grounds relating to the character test, and in each case the power is conferred in terms of a state of satisfaction.
60 At [68] his Honour said:
By parity of reasoning with the cases on s 501(2) discussed above, the Minister in exercising the power conferred by s 501CA(4) has no duty to evaluate the risk of harm to the Australian community “in any particular way or to ascribe any particular characterisation to the quality of the risk”: see Brown v Minister for Immigration and Border Protection [2015] FCAFC 141; (2015) 235 FCR 88 at [41], citing Moana at [71] and Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 at [44]. In other words, there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational…
61 I respectfully agree with the reasoning of Moshinsky J as expressed in [68] that where the Minister exercises power conferred by s 501CA(4), the manner in which that discretion is to be exercised is guided by the same considerations as those considered by this Court in relation to s 501(2).
62 In the present case, the applicant’s legal argument turns upon whether the Direction includes language that is prescriptive as to the manner in which the risk of harm to the Australian community is evaluated by a delegate. The language of cl 13.1.2(2) was said by the applicant to provide a basis for distinguishing the authorities to which Moshinsky J referred in BSJ16.
63 In my view it does not.
64 Sub-clause 13.1.2 is set out in [35] above.
65 The correct analysis in the present case is to “consider” whether the Tribunal had regard to the principle set out in cl 13.1.2(1), and also had “regard”, cumulatively, to the nature of the risk of harm to individuals or the Australian community should the applicant engage in further misconduct, as well as the likelihood that the applicant would engage in further such misconduct, taking into account available information and evidence on the risk of reoffending as required in cl 13.1.2(1). However, no language in cl 13.1.2 requires that the Tribunal provide an estimate of the extent of the likelihood of re-offending. The question of “likelihood” is left at large, to be considered cumulatively with the other factors mentioned, in the light of the principle identified. Accordingly, in my view the language in cl 13.1.2 imposes no duty upon a delegate to ascribe any particular characterisation to the quality of the risk provided that the matters referred to in it are taken into account.
66 In the present case, the Tribunal considered (at [44] – [49]) the reasons the applicant claimed he became involved in the criminal activity; his past vulnerability to participating in criminal activity when under financial strain; the uncertain financial conditions that the applicant would face upon his release; the fact that rehabilitation had not been tested; evidence from a number of witnesses that the applicant was remorseful and that they did not consider that he would reoffend; the applicant’s recent history of smoking marijuana; his extensive adverse driving record and his contrition. Having regard to all of these matters, the Tribunal concluded that the applicant had little regard for abiding by the law before his conviction in 2014.
67 In adopting this approach, the Tribunal focused on what might happen in the future, and gave consideration to the likelihood of the applicant reoffending, in the circumstances facing him upon his release. In addition, the Tribunal assessed the nature of the harm caused to individuals or the Australian community, should the applicant reoffend and concluded that there would be potentially significant and irreparable financial and psychological damage to the Australian community if the applicant were to reoffend.
68 Having regard to these matters, I am satisfied that the Tribunal considered the risk to the Australian community having regard to, cumulatively, the matters set out in cl 13.1.2 of the Direction. I am not satisfied that the Direction requires the Tribunal to provide an estimate of the likelihood of reoffending.
69 Accordingly, I dismiss ground 4 of the application.
5.4 Denial of natural justice or procedural fairness (ground 5)
70 In ground 5 the applicant contends that the Tribunal failed to accord him natural justice or procedural fairness by failing to give the applicant the opportunity to be heard and make submissions on the proposition that, despite facing some initial difficulties upon his return to China, he will be able to live and support himself in that country. Criticism is directed to [68], where the Tribunal concluded that the applicant has friends in China, that he speaks the language there and that he was able to find work in Australia without speaking much English. The applicant submits that this reasoning does not obviously support a conclusion that he would be able to maintain a basic standard of living if he returned to China.
71 The applicant contends that the Tribunal failed to comply with the requirement articulated by the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone) at 591-2 (and subsequently endorsed by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [29]) (emphasis added):
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. …
72 The applicant further submits, in the context of this ground, that the Tribunal’s conclusion at [68] to the effect that the applicant could be supported in China, was not confirmed by the content of the evidence before it.
73 The respondent contended that the obligation set out in Alphaone had been amply satisfied by the Tribunal, having regard to the evidence and arguments advanced before it.
74 In Picard v Minister for Immigration and Border Protection [2015] FCA 1430, Tracey J considered the statutory context in which the obligation to afford procedural fairness arises pursuant to s 501CA(4) and the Direction. He noted that the invitation to the applicant to make an application and submissions to the Minister pursuant to s 501CA(4) had directly pointed him to the Direction. His Honour then said:
42. It does not follow that, in all cases, the Minister will accord procedural fairness simply by complying with the requirements of s 501CA(3). Once the invitation to make representations is extended to a visa holder it falls to the visa holder, if he or she wishes to do so, to provide information and submissions to the Minister in an effort to persuade the Minister that a revocation decision should be made. Those representations will be made in the knowledge that the Minister is likely to be guided by some or all of the considerations referred to in Direction 65. The applicant will, therefore, be in a position to provide the Minister with information relating to those considerations, including information which might seek to anticipate and allay concerns which the Minister might harbour relating to the applicant’s circumstances and conduct. If, in making representations, the applicant provides information to the Minister, relating to his or her personal circumstances, and that information is critical and relevant to the applicant’s case the Minister is bound to consider it. It will be a matter for the Minister to weigh such matters against other relevant considerations, including those mentioned in Direction 65. It will not, normally, be necessary for the Minister to afford a further opportunity to the applicant to deal with particular issues. If, however, the Minister becomes aware of information which is personal to the applicant and which might lead the Minister to disbelieve some critical information supplied by the applicant, it may be necessary for the Minister to expose that information to the applicant and give the applicant the opportunity of responding to it before making a decision.
75 The respondent particularly emphasised the final two sentences of the above quotation, and noted that as a matter of fact, the applicant was on notice that the extent of the impediments that he might face upon his return to China was a live issue on review. I agree with that submission for the following reasons.
76 First, the terms of the Direction, in cl 14.5(1)(b) and (c) explicitly direct attention to the extent of any impediments that the applicant may face if returned to his home country, in establishing and maintaining basic living standards, taking into account whether there is any substantial language or cultural barriers, or any social, medical or economic support available to him in that country. It was not in dispute that in the first invitation provided to the applicant to make representations pursuant to s 501CA(4) the applicant’s attention was drawn to the contents of the Direction.
77 Secondly, in written and oral argument before the Tribunal the question of whether the applicant would be able to support himself in China was the subject of vigorous debate. It was addressed by both parties in their statements of facts and contentions and was the subject of cross examination of the applicant and other witnesses.
78 Thirdly, the Tribunal directly invited the applicant’s counsel to comment on the issue. In this context the transcript reveals that the Tribunal said:
SENIOR MEMBER: … Well he’s healthy, he’s got skills, he can drive a taxi, and he’s worked in a construction industry I think it said as evidence. Why would he not be able to have a similar subsistence level existence in China?
79 These matters serve to demonstrate that the applicant was provided with ample opportunity to respond to the issue of whether or not support is available for the applicant in China in the event that he is returned to that country.
80 Accordingly, I reject ground 5 of the application for review.
81 The application for review is dismissed with costs.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley. |
