FEDERAL COURT OF AUSTRALIA

Stojanovski v Assistant Minister for Immigration and Border Protection [2017] FCA 609

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding is dismissed.

2.    The Applicant is to pay the costs of the Respondent.

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

REASONS FOR JUDGMENT

1    The Applicant in the present proceeding, Mr Blagojce Stojanovski, arrived in Australia in April 1968 at the age of three years. He was born in September 1964 and is of Macedonian origin. He was granted permanent residence upon his arrival in Australia.

2    In August 2015 his visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the “Migration Act”). The Assistant Minister for Immigration and Border Protection was of the view that Mr Stojanovski failed the “character test” as defined in s 501 of the Migration Act and was further satisfied that for the purposes of s 501CA(4)(b)(ii) of the Migration Act that there was no “reason why the original decision to cancel Mr Stojanovski’s visa should be revoked”.

3    The Assistant Minister provided a detailed Statement of Reasons for his decision in November 2016.

4    An Application seeking judicial review of the Assistant Minister’s decision was filed in the Federal Circuit Court of Australia in December 2016.

5    That Application was transferred to this Court in January 2017. An Amended Originating Application was filed in this Court on 3 March 2017 and a Further Amended Originating Application was filed on 10 March 2017.

6    The proceeding is to be dismissed with costs.

Sections 501 & 501CA

7    Section 501(1) of the Migration Act provides that the Minister “may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test”. Section 501(3) and (3A) provide as follows:

(3)    The Minister may:

(a)    refuse to grant a visa to a person; or

(b)    cancel a visa that has been granted to a person;

if:

(c)    the Minister reasonably suspects that the person does not pass the character test; and

(d)    the Minister is satisfied that the refusal or cancellation is in the national interest.

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

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

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

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

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

8    Section 501(6) provides in relevant part as follows:

For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

…

Section 501(7) in turn relevantly provides as follows:

Substantial criminal record

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or

…

9    Section 501CA(3) and (4) provide as follows:

(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.

10    In respect to these provisions, Moshinsky J has summarised their effect in BCR16 v Minister for Immigration and Border Protection [2016] FCA 965 as follows:

[48]    At this stage, there has been little judicial consideration of ss 501(3A) and s 501CA. The provisions were considered by Tracey J in Picard v Minister for Immigration and Border Protection [2015] FCA 1430. In that case the applicant contended that there had been a denial of procedural fairness in relation to the Minister’s decision under s 501CA not to revoke a cancellation decision. Tracey J explained (at [40]) that s 501(3A) requires the Minister to cancel a visa if he or she (or a delegate) is satisfied that the holder does not pass the character test and is serving a sentence of imprisonment; as a result, the reasons for a cancellation decision can be very shortly stated; there is no need for a decision-maker to have regard to any discretionary considerations. Tracey J then stated (at [40]) that, in this context, s 501CA is an ameliorative provision; it requires the Minister to invite representations from the person whose visa has been cancelled about the revocation of the cancellation decision and confers on the Minister a discretion to revoke the cancellation. In relation to s 501CA(3), Tracey J noted that the Minister is required to provide a person whose visa has been cancelled under s 501(3A) with written notice of the cancellation decision and particulars of “the relevant information” relating to the making of the decision; such “relevant information” is defined in s 501CA(2) as information that the Minister considers “would be the reason, or part of the reason for making the [cancellation] decision” and “is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member”; and that the obligation thus relates to information bearing on the decision to cancel, not information on which the Minister might rely in deciding whether or not to revoke the cancellation decision. Tracey J observed (at [40]) that “[t]his is a somewhat strange provision given that the cancellation will have occurred because the Minister (or his delegate) will have been satisfied of two objectively ascertainable facts”. Tracey J referred (at [41]) to Direction No 65 and stated that it identified a series of broad considerations which the Minister could, but was not obliged to, take into account when reaching a decision. Tracey J then stated (at [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.

(Emphasis in original)

The criminal history of Mr Stojanovski

11    It was common ground in the present proceeding that Mr Stojanovski had a “substantial criminal record” within the meaning of s 501 of the Migration Act.

12    That criminal record extended from 1981 through to March 2015. The offences for which he was convicted varied from possessing and supplying prohibited drugs, through to driving in a manner dangerous and assault. His most recent conviction was in March 2015 when he pleaded guilty to contravening an Apprehended Violence Order, stalk/intimidate and common assault. For those most recent offences he was sentenced to a period of imprisonment of 4 months, concluding in March 2015.

13    The punishments imposed in respect to these various offences ranged from fines from $100 to $750 and terms of imprisonment ranging from one month to four years.

14    The sentencing remarks of the Magistrate when imposing the sentence of imprisonment in March 2015 read as follows:

HER HONOUR:    Mr Stojanovski, today I have to sentence you.

Domestic violence is wrong, and it is absolutely wrong, and what your partner has had to put up with with these matters, where you wrongly accused her of being unfaithful, and then you yelling at her, I am reading about you putting your hands around her throat, attempting to pull her back, and ripping one of her - and as she broke free, one of her earrings ripped out. Your children saw that, and it is wrong.

You entered the plea on the second time in the list. I am going to give you a 20% discount on sentence. We did not actually get as far as putting the matter down for hearing, so I will give you the 20% discount on sentence.

These ones do carry terms of imprisonment, and what is counting against you today is the fact that you were on parole at the time. You have matters on your record that I do need to take into account, although there is limited matters of violence, and in terms of domestic violence there is limited matters on your record.

When I take everything into account, this is not at the lowest end of seriousness. It is quite concerning when I read about what I am reading.

Today I am of the view that there is no other option but to impose a term of imprisonment.

The reasons provided & the Grounds of Review

15    The Further Amended Originating Application advanced eight separate Grounds of Review.

16    Notwithstanding the length of time that Mr Stojanovski has spent in Australia, none of the Grounds have been made out.

17    A recurring theme pervading each of the Grounds of Review is an assertion that the Minister was “required” by Direction No 65 to give consideration to particular matters.

18    Those assertions, with respect, are misplaced.

19    Section 499 of the Migration Act confers a power upon the Minister to give “directions” to a person or body that has functions or powers under the Act about “the performance of those functions” or “the exercise of those powers”. Direction No 65 was such a “direction”.

20    But Direction No 65 does not “bind the minister personally in any legal way”: cf. Ngaronoa v Minister for Immigration and Citizenship [2007] FCAFC 196 at [16], (2007) 244 ALR 119 at 123 per Bennett and Buchanan JJ. In Misiura v Minister for Immigration & Multicultural Affairs [2001] FCA 133, Madgwick J had much earlier observed:

[14]    … As submitted by counsel for the applicant, s 499 allows the Minister to issue directions which structure the exercise of discretion under the Act and promote consistency in decision making. However, there is nothing in the Act to suggest that the Minister is bound to follow that direction when personally making a decision under s 501 of the Act. Nevertheless, it would seem just and fair that the Minister should in general do so and that, if the Minister should choose not to follow the same criteria he had directed others to observe, he would indicate his intention, in advance, to depart from the direction. In other words, considerations of “procedural fairness” or “natural justice” may apply.

His Honour thereafter continued on to observe:

[18]    Nevertheless, although the respondent was not bound by the Direction, there was still a requirement that there be a genuine weighing of relevant factors. The Minister is given a discretion under s501 in effect to see to the expulsion of someone from Australia. This is apt to be of profound importance to the life of that person and to the lives of his or her family. Such a decision cannot be made without a consideration of relevant factors on pain of a court concluding that there has been a misunderstanding of the law or a constructive failure to exercise jurisdiction, either way leading to an unauthorised decision; see Hong v Minister for Immigration & Multicultural Affairs [1999] FCA 1567. Among the pre-eminent, plainly relevant factors, binding direction or no, is the extent of hardship for the visa-holder and for members of his or her family.

See also: Adams v Minister for Immigration & Multicultural Affairs [2001] FCA 552 at [17] per Heerey J; Javillonar v Minister for Immigration and Multicultural Affairs [2001] FCA 854 at [28], (2001) 114 FCR 311 at 318 per Stone J; Mehta v Minister for Immigration and Border Protection [2015] FCA 1096 at [24], (2015) 238 FCR 439 at 445 per Murphy J.

21    To the extent that each of the Grounds of Review seeks to place reliance upon Direction No 65 and any contention that the Minister was “bound” or otherwise “required” to follow that Direction, each is accordingly misconceived.

22    Direction No 65, however, remains a useful guide as to the manner in which statutory powers are exercised and continues to “promote consistency in decision making”. Any departure from that Direction may expose the Minister to an argument as to a denial of procedural fairness unless he indicates in advance his intention to do so.

23    The Grounds of Review are to be construed as abandoning reliance upon Direction No 65 as the source of any “requirement” that the Minister comply with that Direction and are to be construed as simply identifying considerations of relevance to the Minister when exercising the powers conferred by s 501CA(4).

The expectations of the Australian community

24    The first Ground of Review asserts a failure on the part of the Assistant Minister to take into account “the expectations of the Australian community when weighing the primary and secondary considerations as required by cl 8 of Direction No 65”.

25    Although reliance upon Direction No 65 as the source of any requirement to give consideration to the expectations of the Australian community has been abandoned, the submission that was advanced was that such “expectations” remained a matter to which primary consideration should generally be given. In the case of decisions made by persons other than the Minister, cll 8(4) and 9(1)(c) of Direction No 65 so provide.

26    Whatever the source of the need for the Assistant Minister to give consideration to such “expectations”, it was submitted on Mr Stojanovski’s behalf that the Assistant Minister had failed adequately to do so.

27    Paragraph [116] of the Assistant Minister’s Statement of Reasons, it was contended on behalf of Mr Stojanovski, addressed the “risk of harm” to the Australian community and the “best interests of his minor family” but failed to address the “expectations of the Australian community”.

28    Paragraph [116] of those Reasons provided as follows (without alteration):

116.    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 STOJANOVSKI represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interest of his minor family members, as a primary consideration, and any other considerations as described above. These include his lengthy residence in Australia, strong familial bonds to Australia and the hardship Mr STOJANOVSKI, his family and social networks will endure in the event the original decision is not revoked.

29    Contrary to the submission advanced on behalf of Mr Stojanovski, it is concluded that the “expectations of the Australian community” were in fact taken into account by the Assistant Minister.

30    Paragraph [116], it may be accepted, places the focus of attention upon:

    the “risk of harm to the Australian community” – that being a consideration separate and distinct from whatever may be the “expectations of the Australian community”; and

    “other considerations” – those “other considerations” being Mr Stojanovski’s “lengthy residence in Australia, strong familial bonds to Australia and the hardship [to] Mr Stojanovski, his family and social networks”.

But to so confine attention to those two categories of considerations alone is to place to one side both the fact that:

    para [116] is expressly stated not to be an exhaustive statement of the “other considerations” being referred to; and

    the Assistant Minister’s Statement of Reasons expressly identifies the “[e]xpectations of the Australian community” at paras [21] to [25].

When detailing the claims and the findings made, that part of the Statement of Reasons:

    sets forth the views of Mr Stojanovski, his mother and sister as to their perception of those “expectations”.

The Statement of Reasons thereafter concludes as follows (without alteration):

25.    I find that the Australian community would expect non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or whether there is an unacceptable risk that they will breach this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Mr STOJANOVSKI has breached this trust as he has been convicted of common assault (domestic violence) in Australia.

The Statement of Reasons also recites that the Assistant Minister had “considered the representations made by Mr Stojanovski and the documents he has submitted in support of his representations” (at para [7]). Mr Stojanovski, in his representations dated 20 August 2015, expressly addressed:

    the “[e]xpectations of the Australian community”.

There is no reason to believe that the Assistant Minister did not give consideration to (inter alia) the submissions there made.

31    The more confined submission that the Assistant Minister at para [116] may have given consideration to the “expectations of the Australian community” but had failed to “weigh” those expectations against other factors is rejected.

32    Although there would appear to be considerable factual merit in the views being expressed by Mr Stojanovski and on his behalf, the factual merits of the decision remain a matter for the Assistant Minister alone to resolve. The Assistant Minister may wish to revisit his decision. But that is for him alone to determine. It is no part of the function of this Court to go beyond a resolution of the question as to whether a decision has been reached in accordance with law.

33    The first Ground of Review is rejected.

A failure to assess the risk of harm

34    The second Ground of Review asserts that “[t]he Assistant Minister, when assessing the risk of future harm, failed to assess the likelihood of the applicant re-offending in accordance with Direction No 65”.

35    It may also be assumed for present purposes that the risk of harm is a matter to be taken into account by the Assistant Minister: cf. BCR16 v Minister for Immigration and Border Protection [2016] FCA 965 at [54] per Moshinsky J. Again the reference to Direction No 65 may presently be placed to one side. The substance of the argument is whether the Assistant Minister, in accordance with law, considered the likelihood of Mr Stojanovski reoffending.

36    Those parts of the Statement of Reasons which it is said on behalf of Mr Stojanovski expose error are primarily paras [109] and [115]. Paragraph [109] appears in the following context (without alteration):

Prior Warnings

107.    On 18 July 2007 Mr STOJANOVSKI was sent notice of a decision not to cancel his visa and a warning that if he engaged in further offending a visa cancellation may be re-considered. He sent back an undated signed acknowledgement. Mr STOJANOVSKI was sent a second decision not to cancel his visa and a warning on 22 August 2014. He sent back a signed acknowledged dated 24 August 2014.

108.    Mr STOJANOVSKI has argued that a decision was made not to cancel his visa based on the sentence he received on 11 December 2012 and that same offending was used as the basis for his current mandatory cancellation. Mr STOJANOVSKI states ‘this is inherently unfair because I successfully argued against the intention to cancel my visa back then and yet now you are using the same offence to identify me as having a substantial criminal record”.

109.    I have noted Mr STOJANOVSKI’s remorse for his offending and the steps he has taken towards rehabilitation including stopping his illicit drug use. I have given weight to the support he has from his family and the availability of employment should he return to the community. Notwithstanding these factors, I have noted that past sentences of imprisonment and two warnings have failed to curb his offending. Given his history of substance abuse and his repeat violent offending, I find there remains a likelihood that he may re-offend. If Mr STOJANOVSKI did reoffend in a similar manner, it could result in conduct that could cause harm to a member or members of the Australian community given the widespread harm drugs cause to individuals as well as the potential flow-on costs to the community in terms of any required involvement of law enforcement, public health and judicial services. I consider that further offending of a violent nature by Mr STOJANOVSKI could result in physical harm to members of the Australian community.

Paragraph [115] forms part of the “[c]onclusion” reached by the Assistant Minister and states as follows:

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

37    No question is taken on behalf of Mr Stojanovski as to para [109] exposing error by reason of either the test to be applied when considering the risk of harm (i.e., any question as to the term “likelihood” exposing any error) or that the risk of harm was not in fact taken into account.

38    The confined submission made in respect to para [109] was that the Assistant Minister failed to properly take into account the “nature of the harm” occasioned to the Australian community. Again, in the case of decisions made by persons other than the Minister, so much – it was submitted – was required by cll 8(2) and 13.1.2 of Direction No 65. But the Assistant Minister was not “bound” by that Direction.

39    The Assistant Minister’s reference in para [109] to “the widespread harm drugs cause to individuals as well as the potential flow-on costs to the community” failed – or so it was submitted – to show that the Assistant Minister considered the “nature of the harm” because it was:

    too hypothetical and speculative to amount to a real evaluation;

and, in any event, failed to take into account the “nature of the harm” to:

    Mr Stojanovski personally, including the impact upon him and his family of a refusal to revoke the decision cancelling his visa; and

    the broader Australian community, including the harm that would be caused by (for example) other persons to whom he could supply prohibited drugs should he reoffend and the impact upon the families of such persons.

40    That submission is rejected.

41    No greater specification of the risk being assessed need be provided when making a decision not to revoke a decision cancelling a visa pursuant to s 501CA(4). There was no requirement imposed upon the Assistant Minister to assess the risk of harm in any particular way: BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181. Moshinsky J there relevantly observed:

[68]    By parity of reasoning with the cases on s 501(2) discussed above, the Minister in exercising the power conferred by s 501CA(4) has no duty to evaluate the risk of harm to the Australian community “in any particular way or to ascribe any particular characterisation to the quality of the risk”: see [Brown v Minister for Immigration and Border Protection [2015] FCAFC 141, (2015) 235 FCR 88] at [41], citing [Moana v Minister for Immigration and Border Protection [2015] FCAFC 54, (2015) 230 FCR 367] 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 (in the sense used in cases such as Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1).

See also: Chen v Minister for Immigration and Border Protection [2017] FCA 46 at [59] to [61] per Burley J.

42    The manner in which the Assistant Minister assessed the risk of harm in the circumstances of the present proceeding does not expose reviewable error.

43    The second Ground of Review is rejected.

A fettering of discretion – a privilege to remain in Australia

44    The third Ground of Review asserts an impermissible fettering of the discretion conferred by s 501CA(4) of the Migration Act.

45    This Ground seizes upon the following passage in the Statement of Reasons:

Protecting the Australian Community

72.    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 STOJANOVSKI’s claim he does not pose an unacceptable risk of reoffending and is rehabilitated. 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.

Particular reliance is placed upon the concluding reference to the “privilege that Australia confers on non-citizens”.

46    This argument, with respect, was somewhat elusive. The argument accepted that the discretion conferred by s 501CA(4) was “unfettered in its terms”: BCR16 [2016] FCA 965 at [73] per Moshinsky J. But the argument proceeded to assert that the occasion for the exercise of the discretion only arose in circumstances where a visa holder relevantly had a “substantial criminal record” and – confined to that sole factor – any reference to a “privilege” to remain in Australia necessarily always had to be answered in favour of an adverse decision. A person with a “substantial criminal record”, it was submitted, was of necessity a person who would be said not to be law abiding and a person who necessarily could no longer seek to invoke the “privilege”.

47    No argument was advanced seeking to invoke the decision of Collier J in Tesic v Minister for Immigration and Border Protection [2016] FCA 1465.

48    The argument as advanced in the present case is rejected.

49    Rather than founding his decision upon any such “privilege”, the decision is founded upon the Assistant Minister’s assessment of the other matters to which he refers. The reference to “privilege” did not fetter any exercise of the discretionary power conferred on the Minister.

50    The third Ground of Review is, accordingly, rejected.

Two prior occasions of non-revocation

51    The fourth Ground of Review asserts that the Assistant Minister erred in failing to take into account the fact that the revocation of Mr Stojanovski’s visa had on two prior occasions been considered and not revoked on either earlier occasion.

52    Those two earlier occasions were in 2007 and 2014. The facts under consideration in 2014 were largely the same as those that founded the Assistant Minister’s current decision taken in August 2015, the one significant difference being the subsequent convictions in March 2015 with respect to the domestic violence and related offences.

53    The argument now advanced on behalf of Mr Stojanovski was that it was “unfair” to rely upon those same events when revocation was previously under consideration but not pursued. No argument was advanced that:

    the power conferred by s 501 had been “spent” by reason of its earlier non-exercise;

    there was an estoppel or other reason why the Assistant Minister could not now rely upon the same facts and circumstances as were previously considered; or that

    any subsequent consideration as to the exercise of the power required the Minister to find “another reason” separate from those reasons which were previously under consideration in 2007 and 2014.

The argument that was advanced was simply that:

    the Assistant Minister was required to explain why he now considered it appropriate to exercise the power in circumstances where an earlier consideration of the same facts was considered not to warrant an exercise of the power.

The explanation provided at paras [107] to [108] of the Statement of Reasons, it was submitted, fell short of the explanation required.

54    That argument is rejected.

55    It is respectfully considered that those paragraphs, along with para [109], adequately set forth the Assistant Minister’s assessment that the two prior “warnings” had “failed to curb his offending”. That latter reference is to be understood as a reference to the further offences to which Mr Stojanovski pleaded guilty in 2015. Although a more fulsome explanation would have been desirable, especially some consideration being given to the circumstances which led Mr Stojanovski to enter the plea that he did and the wife’s subsequent account, some explanation at least was provided.

56    The fourth Ground of Review is rejected.

Australia’s non-refoulement obligations

57    The fifth Ground of Review asserts a failure to consider Australia’s non-refoulement obligations.

58    This Ground suffers from a number of difficulties.

59    First, the Assistant Minister considered the claims made by Mr Stojanovski. Those claims – including those under the heading “International Non-Refoulement Obligations” – did not effectively raise for consideration any non-refoulement obligations that may be owed to him.

60    No error can be exposed from failing to consider a claim not made.

61    Second, to the extent that non-refoulement obligations were said to be raised, the argument put was that there was a failure on the part of the Assistant Minister to consider:

    the health condition claimed to have been suffered by Mr Stojanovski, namely “heart attack” prior to his removal to Christmas Island as referred to in an email dated 29 January 2016; and

    the impediments to be faced by Mr Stojanovski if he were to be returned to Macedonia, including language and cultural barriers.

The 2016 email, obviously enough, did not form part of the documents considered by the Assistant Minister or his decision made in August 2015. Mr Stojanovski’s more generally expressed health condition, however, was considered at paras [62] to [64] of the Statement of Reasons. The difficulties in respect to language and culture were also adverted to by the Assistant Minister at para [65].

62    The Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights are both invoked on behalf of Mr Stojanovski. Whether the facts of the present case could fall within either Convention may be doubted. It is difficult, for example, to see how the removal from Australia of Mr Stojanovski could fall within Article 7 of the International Covenant on Civil and Political Rights. That Article provides as follows:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

But so much may, for present purposes, be assumed in favour of Mr Stojanovski.

63    The further difficulty is that the health of Mr Stojanovski and the language and cultural difficulties he would confront if returned to Macedonia were considered. If any more specific concern was sought to be raised by Mr Stojanovski, it should have been – but wasn’t – raised in his submissions forwarded to the Assistant Minister.

64    The fifth Ground of Review is rejected.

The right to re-enter Australia

65    The sixth Ground of Review asserts a failure on the part of the Assistant Minister to take into account Mr Stojanovski’s “right to enter his own country”.

66    In reliance upon Article 12(4) of the International Covenant on Civil and Political Rights, it was submitted on behalf of Mr Stojanovski that his “own country” was Australia. Article 12 provides as follows:

1.    Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2.    Everyone shall be free to leave any country, including his own.

3.    The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

4.    No one shall be arbitrarily deprived of the right to enter his own country.

67    The International Covenant on Civil and Political Rights is Sch 2 to the Australian Human Rights Commission Act 1986 (Cth), which was formerly known as the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the “HREOC Act”). But the provisions of Sch 2 do not form part of Australian law: Dietrich v The Queen (1992) 177 CLR 292 at 305 per Mason CJ and McHugh J, at 359 to 360 per Toohey J. In reliance upon Dietrich, Ryan, Merkel and Goldberg JJ in Minogue v Williams [2000] FCA 125, (2000) 60 ALD 366 at 372 concluded:

[21]    … The [International Covenant on Civil and Political Rights] comprises Sch 2 of the HREOC Act. The applicant submitted that a schedule to an Act is part of an Act (see s 13(2) of the Acts Interpretation Act 1901 (Cth)) and, if the Act provides for the schedule to be used for a particular purpose, it must be read as operating for that purpose: Inland Revenue Commissioners v Gittus [1920] 1 KB 563 at 576. Although the [International Covenant on Civil and Political Rights] is found in a schedule to the HREOC Act, there is nothing in that Act which purports to incorporate the [International Covenant on Civil and Political Rights] as part of Australian domestic law or enact it as such. The [International Covenant on Civil and Political Rights] is not referred to in the HREOC Act for the purpose of creating or conferring statutory rights in accordance with its terms. It is referred to in s 11(1) of the Act but only for the purpose of identifying one of the functions of the Human Rights and Equal Opportunity Commission as being to report to the Minister as to any action that needs to be taken by Australia to comply with the provisions of the covenant, or to examine any relevant international instrument for the purpose of ascertaining whether there are any inconsistencies between that instrument and the covenant.

Article 12(4), accordingly, does not of itself confer any rights upon Mr Stojanovski. Nor was the Minister when exercising his powers under s 501CA bound to take into account the provisions of Art 12.

68    The reliance upon Art 12(4) and an asserted “right to enter his own country” was, in any event, with respect, misleading and raised an unnecessary hurdle to Mr Stojanovski’s possible path to success.

69    Another way in which the submission could have been advanced, albeit falling short of an asserted right conferred by the Convention, was to simply submit that the Minister was obliged to consider the ability of Mr Stojanovski to re-enter Australia to visit his family at some point of time in the future. But, as reformulated, this argument also confronted difficulties.

70    Most fundamentally, any impediment to any ability of Mr Stojanovski to re-enter Australia was not a factor squarely raised for consideration. Those parts of his submission considered by the Assistant Minister and upon which reliance was now sought to be placed before this Court Delphically stated as follows:

This is my home, not at the other end of the world. I don’t know anything else but being Australian.

…

My mother is unable to travel any significant distance due to ill health and age.

…

The country of my birth is quite honestly off my radar, and why wouldn’t it be since I can remember nothing of it after leaving at the age of 3, it is not my home.

Such statements, with respect, fell well short of raising this as a matter that the Assistant Minister was bound to take into account.

71    The process of judicial review is not the occasion for a visa holder to trawl through such submissions and documents as were placed before a decision-maker and to thereafter – with the benefit of both hindsight and a Statement of Reasons – identify a particular statement previously made and seek to attribute to it a relevance not even self-evident upon more careful and subsequent scrutiny: Goundar v Minister for Immigration and Border Protection [2016] FCA 1203. Robertson J there usefully stated the same proposition more generally expressed as follows:

[55]    It is not necessary to determine the issue of whether the applicant’s representation as to the risk of retribution was a mandatory relevant consideration. That conclusion does not follow from [Picard v Minister for Immigration and Border Protection [2015] FCA 1430]. It is correct to say that in that case the learned judge stated at [42] that if, in making representations, the applicant provided information to the Minister, relating to his or her personal circumstances, and that information was critical and relevant to the applicant’s case the Minister was bound to consider it. As noted in [BCR16 v Minister for Immigration and Border Protection [2016] FCA 965] at [76], those observations in Picard were made in the context of procedural fairness obligations owed by the Minister under s 501CA(4). In any event I do not read Picard at [42] as standing for the proposition that each statement in the representation is a mandatory relevant consideration.

72    The statements now relied upon on behalf of Mr Stojanovski were, accordingly, not statements that the Assistant Minister was bound to take into account.

73    The sixth Ground of Review is rejected.

All of the consequences

74    The seventh Ground of Review asserts a failure on the part of the Assistant Minister to consider “all of the consequences” when making his decision.

75    The thrust of this Ground of Review was understood to supplement the challenge to para [116] of the Statement of Reasons but separately contended that there was an alleged failure to consider:

    the fact that Mr Stojanovski’s “right for respect for his family life would be arbitrarily interfered with”;

and that this “interference” was:

    “not in accordance with the [International Covenant on Civil and Political Rights]”.

76    Again, however, these were matters to which the Assistant Minister had regard. Thus, this Ground of Review is also rejected.

A denial of procedural fairness

77    The final Ground of Review asserts a denial of procedural fairness.

78    It was common ground that the Assistant Minister was bound to extend to Mr Stojanovski procedural fairness: Bochenski v Minister for Immigration and Border Protection [2016] FCA 989, (2016) 153 ALD 309. Tracey J there observed (at 319):

[62] There was no dispute that the Assistant Minister was required to afford procedural fairness to Mr Bochenski. This, as the High Court recently reaffirmed, required that he provide Mr Bochenski with an opportunity “to propound his … case for a favourable exercise of the power” in a manner that avoided “practical injustice”: see Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29 at [82]. See also: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 160.

79    It was also common ground that when making his decision the Assistant Minister was:

    not bound to comply with Direction No 65;

but that, if he chose not to follow those criteria that he had directed others to follow, the Assistant Minister was:

    obliged to indicate in advance his intention to depart from that Direction.

See: Misiura [2001] FCA 133 at [14] per Madgwick J; WASB v Minister for Immigration and Citizenship [2013] FCA 1016 at [48], (2013) 217 FCR 292 at 302 per Barker J.

80    In the circumstances of the present case, the letter to Mr Stojanovski dated 7 August 2015 advising him of the decision to cancel his visa and advising him of the opportunity to seek revocation of that decision also attached a copy of Direction No 65. Mr Stojanovski was advised that the Direction identified “issues that are relevant to the revocation consideration” and that he “should address each paragraph in PART C of the Direction that is relevant to your circumstances”. The letter also stated:

Please note that if the decision-maker who makes the decision regarding whether or not to revoke the decision to cancel your visa is a delegate of the Minister, they must follow Direction 65. If, however, the Minister makes a revocation decision personally, he or she is not bound by Direction 65, although Direction 65 provides a broad indication of the types of issues that the Minister is likely to take into account in deciding whether or not to revoke the decision to cancel your visa.

81    The August 2015 letter, it is respectfully considered, properly put Mr Stojanovski on notice of the issues to be addressed and afforded him an opportunity to be heard and to advance such submissions as he saw fit.

82    This Ground of Review, more specifically confined in oral submissions, was that one of the issues to which the August 2015 letter and Direction No 65 directed attention was the potential relevance of non-refoulement obligations. But that issue was not one pursued by the Assistant Minister in making his decision. The argument was that this “departure” from the statement of issues to be addressed should have been brought to Mr Stojanovski’s attention so that he could more fully make submissions as to why it should have been considered.

83    The argument so confined also fails.

84    Had the reverse factual situation presented itself where a decision did take into account non-refoulement obligations but where the visa holder was not advised as to the potential relevance of such an issue, there may be occasioned a denial of procedural fairness. But where the visa holder was told – as Mr Stojanovski was in the August 2015 letter – that Direction No 65 provided but a “broad indication of the types of issues that the Minister is likely to take into account”, and where an opportunity was extended to Mr Stojanovski to make submissions in respect to that issue, the weight to be given to that issue (if any) was a matter thereafter entrusted to the Assistant Minister alone.

85    There has been no denial of procedural fairness.

86    The final Ground of Review is rejected.

CONCLUSIONS

87    None of the Grounds of Review have been made out.

88    The proceeding should thus be dismissed with costs.

89    It remains a matter for the Assistant Minister to give such reconsideration to his decision as he sees fit. The cancellation of a visa held by a person who entered this country at the age of 3 years and who has remained in this country for over half a century, even a person who has a criminal record, it is respectfully considered, warrants further attention.

THE ORDERS OF THE COURT ARE:

1.    The proceeding is dismissed.

2.    The Applicant is to pay the costs of the Respondent.

Associate:

Dated:    31 May 2017