FEDERAL COURT OF AUSTRALIA

Tupkovic v Minister for Immigration and Border Protection [2017] FCA 73

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    This application, dated 13 October 2016, is made under s 476A of the Migration Act 1958 (Cth) (the Migration Act). It was transferred to this Court by the Federal Circuit Court of Australia by an order made on 24 November 2016 under s 39(1) of the Federal Circuit Court Act 1999 (Cth).

2    The applicant seeks judicial review of a decision made under s 501CA(4) of the Migration Act by the Assistant Minister for Immigration and Border Protection on 29 August 2016 not to revoke the decision to cancel the applicant’s Class BF Transitional (Permanent) visa.

3    It is necessary to emphasise the limited jurisdiction of this Court on an application for judicial review. This Court is not concerned with making what may be described as the correct or preferable decision. The making of that decision is for the primary decision-maker. The Court’s jurisdiction is to consider the legality or lawfulness of the decision under review. In the present context, this is made clear by the judgment of the Full Court in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 (Stretton) Allsop CJ at [12], Griffiths J at [56] and Wigney J at [92]. The High Court refused an application for special leave to appeal from that judgment: Stretton v Minister for Immigration and Border Protection [2016] HCATrans 200 (2 September 2016).

4    At the hearing, I granted leave to the applicant to file in Court, and rely on, an amended originating application, annexed to the outline of submissions on his behalf dated 29 January 2017.

5    The grounds of the application are as follows:

1.    The respondent failed to properly exercise his discretion under s.501CA of the Migration Act 1958 (Cth) by erroneously applying an alleged “principle” that persons who commit serious crimes should expect to forfeit the “privilege” of remaining in Australia.

2.    The cancellation decision was affected by legal unreasonableness by: a) misconstruing an evaluation of the risk of reoffending; and b) failing to take into account a relevant consideration.

The statutory provisions

6    Section 501CA is relevantly in the following terms:

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)    …

(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.

…

7    The focus in the present case is on s 501CA(4), the Minister’s discretion to revoke the original mandatory revocation decision if the Minister is satisfied that there is “another reason” why the original decision should be revoked.

Background

8    The applicant is a 30-year-old national of Bosnia and Herzegovina and was the holder of a Class BF Transitional (Permanent) visa. That visa was cancelled on 6 July 2015 under s 501(3A) of the Migration Act.

9    The applicant first arrived in Australia on 3 July 1994, aged eight. He has not departed Australia since.

10    The applicant requested revocation of the visa cancellation decision and representations were made in the prescribed manner and within the prescribed time frame.

11    On 29 August 2016, the Assistant Minister said he was not satisfied that the applicant passed the character test. (There is no challenge to this aspect of his decision.) Nor was the Assistant Minister satisfied that there was another reason why the original decision should be revoked. Accordingly, the Assistant Minister decided not to revoke the decision to cancel the applicant’s visa. The Assistant Minister set out his reasons for this decision in 61 paragraphs.

The Assistant Minister’s reasons

12    In considering, at [32], the nature and seriousness of the applicant’s criminal offending, the Assistant Minister noted that violent offences are very serious. He noted that on 24 February 2015 the applicant was convicted in the Local Court of New South Wales, Campbelltown of assault occasioning actual bodily harm (two counts) and sentenced to 15 months imprisonment on the first count and 12 months imprisonment on the second count. The applicant’s past criminal offending was recorded to also include other offences involving violence in 2005 and 2010. The Assistant Minister also stated the applicant had a number of convictions for common assault, which may have involved violence. These included convictions in August 2007, October 2010 and June 2014.

13    Having set out further details of the applicant’s criminal history, the Assistant Minister said, at [39], he had formed the view that the applicant’s criminal offending was serious. In particular, he noted the repetitive nature of the applicant’s violent offending and found that it had increased in seriousness. He also found the applicant’s offending involving domestic violence to be especially serious and not in line with community values.

14    The paragraphs of the Assistant Minister’s reasons central to this application for judicial review are as follows.

15    Under the heading “Protecting the Australian Community”, the Assistant Minister wrote:

31.    In coming to my decision about whether or not there is another reason why the original decision should be revoked I have had regard to the consideration of the protection of the Australian community, noting in particular Mr TUPKOVIC’s claim he does not pose an unacceptable risk of reoffending. I considered the Government’s commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens. I also took into consideration that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they are law abiding.

16    Under the heading “Risk to the Australian community”, the Assistant Minister wrote:

50.    In assessing Mr TUPKOVIC’s risk of reoffending I have had regard for his breaches of judicial orders, which have resulted in variations in penalties in 2015 and 2011. Mr TUPKOVIC also contravened an Apprehended Violence Order (Domestic) in 2013. I find Mr TUPKOVIC has demonstrated a disregard for judicial orders and Australian law.

51.    I have also had regard for the 2015 Magistrate’s statement that while there is ‘guarded optimism’ for Mr TUPKOVIC’s rehabilitation, ‘he has a long way to go’. I too hold such concerns about the durability of Mr TUPKOVIC’s rehabilitation, notwithstanding his submissions that he has changed since being in gaol. In particular, I hold concerns that Mr TUPKOVIC’s aggression and alcohol abuse problems remain untreated via the completion of rehabilitation programs.

52.    Having regard for the information before me, I find that Mr TUPKOVIC’s rehabilitation is yet to be tested in the community and there remains a likelihood that he may reoffend, particularly if he continues to drink alcohol and/or again finds himself under stress. If Mr TUPKOVIC is to reoffend, it may well result in serious physical harm to a member of the Australian community.

17    Under the heading “CONCLUSION”, the Assistant Minister wrote as follows:

56.    In considering whether, in light of Mr TUPKOVIC’s representations, I was satisfied that there is another reason why the original cancellation decision should be revoked, I have considered the length of time Mr TUPKOVIC has made a positive contribution to the Australian community and the consequences of my decision for his other family members, in particular his father… and his partner….

57.    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 serious and violent nature of the crimes committed by Mr TUPKOVIC. I am also mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia.

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

59.    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 criminal conduct by Mr TUPKOVIC, than I otherwise would, because he has lived in Australia from a young age. In this case he arrived as an eight year old child and has lived in Australia for 22 years, nearly his entire life.

60.    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr TUPKOVIC represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any other considerations as described above. This included his lengthy residence in Australia, international non refoulement obligations, employment, and the hardship Mr TUPKOVIC, his family and social networks will endure in the event the original decision is not revoked.

61.    Having given full consideration to all of these matters, I am not satisfied, for the purposes (sic) s501CA(4)(b)(ii), that there is another reason why the original decision to cancel Mr TUPKOVIC’s visa should be revoked. Accordingly, I have decided not to revoke the original decision to cancel Mr TUPKOVIC’s Class BF Transitional (Permanent) visa.

The parties’ submissions

18    The applicant’s outline of submissions identified two issues, corresponding to the grounds of the amended application.

Ground 1

19    The first issue was whether the Assistant Minister had failed to properly exercise his discretion under s 501CA by erroneously applying an alleged “principle” that persons who commit serious crimes should expect to forfeit the “privilege” of remaining in Australia.

20    In this respect, the applicant submitted that the Full Court of the Federal Court had effectively found that having the status of a visa holder is not a privilege, but rather a statutory right. The applicant submitted there is no such “principle” and that the Full Court has held that it is dangerous to describe a visa holder’s entitlement as a privilege. The applicant submitted that the Assistant Minister had fallen into jurisdictional error by taking into account this irrelevant consideration.

21    The applicant referred to Stretton and to AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105. The applicant relied heavily on Tesic v Minister for Immigration and Border Protection [2016] FCA 1465 where, in his statement of reasons, the Minister referred to this “principle” of a “privilege” a number of times and the Court held that the “principle” coloured the Minister’s reasoning process and the Minister approached the decision from that perspective, which was not correct. The applicant submitted that the Assistant Minister had used the same expressions as in Tesic and “the respondent needs to be reminded again that such an irrelevant consideration has no place in its reasoning process. Accordingly, the application should be allowed.”

22    The respondent submitted on this issue that there was nothing in the Minister’s reasons or statements from which it could be properly inferred that the Minister considered the “principle” to be a binding “principle” of law: cf Tanioria v Minister for Immigration and Border Protection [2016] FCAFC 43 at [19]-[20]. Notably, the respondent submitted, Direction 65 which was provided to the applicant as a guide to the Minister’s likely considerations, expressly refers to this “privilege” under heading 6.3 as “Principles”.

23    The respondent submitted that there was nothing in this case which rationally distinguished it from Stretton or AZAFQ. There was a single reference by the Assistant Minister in the present case to it being a “principle” and this was plainly referable to Direction 65. There was nothing in the Assistant Minister’s reasons which could support a finding that the Assistant Minister erroneously considered the “principle” to be one of law. Unlike Stretton, the Assistant Minister made no statement that the applicant was “expected” to forfeit the privilege of remaining in Australia given his serious offending. Rather, the Assistant Minister’s conclusion in this case was of a lesser magnitude being only that he was “mindful” of that expectation, and nothing in the Minister’s reasons sought to invoke the “privilege” as rising to a “non-justiciable assessment of community values”. Accordingly, the respondent submitted, the Assistant Minister’s decision was not “distorted” by consideration of an erroneous legal principle and ground 1 could not succeed.

Ground 2

24    The second issue identified by the applicant was whether the cancellation decision was affected by legal unreasonableness in the sense explained in Minister for Immigration and Citizenship v Li Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 and by the Full Court of the Federal Court in Stretton by way of misconstruing the evaluation of the risk of reoffending and failing to take into account a relevant consideration. The applicant also referred to Minister for Immigration and Border Protection v Eden [2016] FCAFC 28.

25    The applicant submitted that the Assistant Minister’s reasoning lacked an intelligible justification, in that (a) the Assistant Minister’s view of Mr Tupkovic’s reoffending was “misconstrued and disproportionate to his immediate hardship if removal took place;” and (b) the Assistant Minister had failed to take into account a relevant consideration.

26    The applicant submitted that the Assistant Minister had drawn an inference which quantified the risk of Mr Tupkovic reoffending as being so low that it was merely a possibility that could not be ruled out. At no point, it was submitted, did the Assistant Minister ever make a finding that Mr Tupkovic posed an unacceptable level of risk of reoffending, rather it simply remained a “possibility”. However, the applicant submitted, anything is possible and especially obvious in the context of a previous offender. If ruling out the “possibility” of further offending was a requirement in assessing the risk of harm to the Australian community then, the applicant submitted, it was a threshold that would be virtually impossible to be achieved. Accordingly, the applicant submitted, the Assistant Minister’s view that the Australian public is required to be protected against a level of risk assessed as a mere “possibility” was misconceived. It lacked any legal justification in an evaluative balancing of risk against the cost of hardship that may come to Mr Tupkovic.

27    The applicant also submitted that the statement of reasons did not refer to the letter of Mr Tupkovic’s partner that stated that Mr Tupkovic did not take part in the Christmas Island riots. The applicant submitted those riots were stressful for Mr Tupkovic but he had no involvement in them. He had been in detention for more than 12 months without incident and his actions supported his written submissions to the Minister that he vowed not to reoffend again. If the Assistant Minister had taken that part of the evidence into consideration he would have referred to it in his statement of reasons, given the nature of the claims and evidence. The applicant referred to Minister for Immigration and Border Protection v SZRKT [2013] FCA 317; 212 FCR 99.

28    The respondent submitted that this second issue was misconceived on a number of levels.

29    First, the Assistant Minister did expressly take into consideration the favourable fact of the applicant’s disciplined behaviour while in detention and also stated that he took into account all of the evidence, including the letter from Mr Tupkovic’s partner. Accordingly, the fact that the detail of the Christmas Island riots was not discussed in the reasons for decision did not mean that Assistant Minister did not consider it.

30    Further, the respondent Assistant Minister submitted there was no legal obligation upon him to consider factors personal to the applicant in relation to his offending. Accordingly, the fact that the Assistant Minister did not discuss in any detail the applicant’s lack of participation in the Christmas Island riots could not be said to be a failure to take into account a mandatory relevant consideration.

31    In relation to the suggestion of legal unreasonableness, the respondent submitted that the applicant appeared to misunderstand the findings. In particular, the Assistant Minister found, in light of the applicant’s untreated issues with alcohol and aggression (and noting the underlying and untreated mental health issues, the submission went) that there remained a likelihood that the applicant may offend again if he continued to drink and/or found himself under stress. This was not the contemplation by the Assistant Minister of a remote or philosophical possibility. Further, the Assistant Minister did conclude that the applicant posed an unacceptable risk of harm to the Australian community. These findings were open on the evidence and logically discussed by the Assistant Minister.

Consideration

Ground 1

32    The Assistant Minister referred to the privilege of remaining in Australia in the conclusion and in the course of discussing the need to protect the Australian community. He referred only once, at [57], to the “principle” in saying that he was also mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia.

33    On the facts of this case, however, I do not accept that the decision-making process was distorted, compare Tesic at [56], or that the Assistant Minister referred to the “privilege” as a principle of law, compare Tesic at [57]. In my opinion, the Assistant Minister was doing no more than taking into account a statement of policy. It follows that I do not accept that misunderstanding the “privilege” as a principle of law coloured the Assistant Minister’s reasoning process, compare Tesic at [57].

34    I reach this conclusion independently of the reference in cl 6.3 of Direction No 65 to the principle that “Being able to … remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding…”

35    In my opinion, Tesic is to be distinguished. In Tesic it was said, at [57], that the statement of reasons was to be contrasted with that of the Minister in Stretton where the Minister referred to the “privilege” in the conclusion and in the course of elucidating the expectations of the Australian community. In Tesic, at [57], it was held that the Minister in the statement of reasons referred to the “privilege” as a principle of law referable to the exercise of the power, rather than a general policy statement. As I have said, in my opinion this did not occur in the present case. It is this which, at [56] in Tesic, was held to be an irrelevant consideration.

36    In so concluding, I have not made a bare comparison of the language used in one decision with the language of another. So to do, in my opinion, would be to mistake the application of a legal principle with the principle itself. It is therefore not determinative that a sentence in [31] and a sentence in [57] of the Assistant Minister’s statement of reasons is identical or almost identical to the sentences in the Minister’s reasons in Tesic reproduced at [53] and [54] of the judgment in that case.

37    Further, Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 requires that attention be paid to the substance of the reasons in the particular case. It is well-settled that the Court should not be “concerned with looseness in the language ... nor with unhappy phrasing of the reasons of an administrative decision-maker. The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.” The reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. It was recognised in Wu Shan Liang, at 271, that: “The words used by the delegate must be analysed to establish what they say as to the thought process in fact applied by the delegate to the determination of refugee status.” See SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; 238 FCR 404 at [38]. Of course, it does not follow that any ambiguity in approach or reasoning has to be resolved in the decision-maker’s favour: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 at [190].

38    For these reasons, ground 1 fails.

Ground 2

39    In relation to legal unreasonableness as explained in Li, I accept the respondent’s submission that the Assistant Minister found that there remained a likelihood that the applicant may offend again if he continued to drink and/or found himself under stress: see [52] of the statement of reasons set out above. Further, this likelihood also followed from the finding that the applicant’s rehabilitation was yet to be tested in the community. This was the context in which “possibility” was considered. In addition, the Minister did conclude that the applicant posed an unacceptable risk of harm to the Australian community: see [60] of the statement of reasons set out above. These findings were open on the evidence and logically discussed by the Minister.

40    I do not accept the applicant’s submission that the Assistant Minister’s decision was legally unreasonable because Mr Tupkovic had found himself under stress during the riots on Christmas Island and, implicitly, that he did not then re-offend. This is not an example of stress where there was an opportunity to re-offend in the community which is what the Assistant Minister was considering at [52], with alcohol and stress in those quite different surroundings.

41    I therefore reject the applicant’s submission that the Assistant Minister had drawn an inference which quantified the risk of Mr Tupkovic reoffending as being so low that it was merely a possibility that could not be ruled out. In any event, the nature of the assessment is necessarily qualitative rather than by reference to what is quantifiable.

42    I reject the applicant’s contention that the Assistant Minister misconstrued the risk of reoffending.

43    As to the claimed failure to take into account a relevant consideration concerning the Christmas Island riots, in my opinion, the Assistant Minister did take into account, at [43] and [48], Mr Tupkovic’s behaviour while incarcerated and in immigration detention and accepted that his behaviour had been disciplined, with no misconduct charges listed, and that his behaviour in jail had been satisfactory. In my opinion there was no legal obligation on the Assistant Minister separately to consider Mr Tupkovic’s non-participation in the riots or that Mr Tupkovic found those riots stressful.

44    I therefore reject the applicant’s submission that the Assistant Minister’s reasoning lacked an intelligible justification or that the Assistant Minister failed to take into account a mandatory relevant consideration.

45    For these reasons, ground 2 fails.

Conclusion and orders

46    For these reasons, the application for judicial review, as amended, should be dismissed. The applicant is to pay the respondent’s costs, as agreed or taxed.

Associate:

Dated:    9 February 2017