FEDERAL COURT OF AUSTRALIA
Poroa v Minister for Immigration and Border Protection [2017] FCA 826
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application is dismissed.
2. The applicant is to pay the costs of the first respondent as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
PERRY J:
[1] | |
[4] | |
[13] | |
[13] | |
[15] | |
[18] | |
[21] | |
[22] | |
[24] | |
[30] | |
[30] | |
4.2 Allegedly unreasonable impact on the applicant and his wife (ground 4) | [40] |
[40] | |
4.2.2 Alleged unreasonableness in assessing effect of non-revocation | [44] |
[48] | |
[53] |
1 This is an application under s 476 of the Migration Act (Cth) (the Act) for judicial review of a decision made on 30 October 2015 under s 501CA(4) by the first respondent, the Minister for Immigration and Border Protection (Minister). The Minister’s decision was not to revoke the delegate’s decision under s 501(3A) to cancel the applicant’s Class TY Subclass 444 Special Category (Temporary) visa (the visa). This matter was transferred to the Federal Court by order of the Federal Circuit Court.
2 Grounds 1 and 2 of the application for judicial review relate to the applicant’s standing to institute the proceedings, which was not in issue. The applicant raises three substantive grounds of review, namely, that the Minister’s decision:
(1) “is infected with error of law for failure to assess risk in conformity with Australian procedures” (ground 3);
(2) “is unreasonable in its impact on the Applicant and through him the Applicant’s wife” (ground 4); and
(3) “has not been made taking necessary account of the requirements of the International Covenant on Civil and Political Rights…to which Australia is a signatory” (ground 5).
3 For the reasons set out below, the application must be dismissed with costs.
4 Section 501(3A) of the Act provides for automatic cancellation of a visa in certain circumstances where a person does not pass the character test. That section reads:
(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.
5 A “substantial criminal record” for the purposes of s 501(6)(a) is defined in s 501(7) to include cases where the person has been sentenced to a term of imprisonment of 12 months or more.
6 By reason of the use of the word “must’, it is apparent that the Minister has no discretion but is required to cancel the visa when she or he is satisfied that the criteria in s 501(3A) are met. By virtue of s 501(5), the rules of natural justice (which I understand to mean the natural justice hearing rule) and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3A). As such, there is no requirement for the Minister to afford a visa holder an opportunity to be heard before cancelling her or his visa where s 501(3A) is engaged.
7 After cancellation, however, the visa holder is afforded an opportunity to be heard on the question of whether the cancellation decision should be revoked, including whether the Minister should revoke the cancellation decision in the exercise of discretion. First, s 501CA(3) requires the Minister as soon as practicable, to give the person a written notice setting out the cancellation decision and particulars of the “relevant information”, together with an invitation to make representations. “Relevant information” is defined in s 501CA(2) as:
….information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(I note that I have elsewhere commented on the inaptness of requiring the Minister to give relevant information in the sense of information that “would be the reason” for the cancellation decision in circumstances where the Minister has already made that decision, and in restricting the information required to be disclosed in the manner provided for in subs (b): Roach v Minister for Immigration and Border Protection [2016] FCA 750 at [26]-[27].)
8 Secondly, the power to revoke the cancellation decision is conferred by s 501CA(4) which provides that:
(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.
9 Where the original (cancellation) decision is revoked, s 501CA(5) provides that it is taken not to have been made.
10 Thirdly, the Minister has a discretion under s 501CA(4)(b)(ii) to revoke the cancellation decision despite being satisfied that the person does not satisfy the character test, if she or he is satisfied that there is another reason why the decision should be revoked. It is apparent from the terms of s 501CA(4)(b)(ii) that that discretion is a broad one pursuant to which the Minister may have regard to factors such as the impact that cancellation of the visa may have upon the individual concerned, her or his family, and the Australian community: BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 (BCR16) at [24]. Considerations of that nature are reflected in Direction No. 65 which, while not binding under s 499 of the Act upon the Minister when (as here) she or he makes the decision personally, may nonetheless be taken into account.
11 Finally, the Minister’s decision not to revoke the cancellation decision is not subject to merits review (s 501CA(7)). The only avenue of challenge is by judicial review of the legality of the Minister’s decision.
12 In this regard, it is important to emphasise that the Court’s jurisdiction is limited to deciding whether the Minister’s decision was made lawfully under the Act, that is, whether the Minister’s non-revocation decision is invalid by reason of a jurisdictional error. The Minister would make a jurisdictional error if, for example, she or he failed to consider a mandatory relevant consideration (such as the risk of harm to community posed by the applicant (see below at [30])), or failed to give the applicant an opportunity to be heard on whether the cancellation decision should be revoked: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ); Craig v South Australia (1995) 184 CLR 163 at 179 (the Court). However, the Court does not have jurisdiction to assess for itself whether or not the Minister’s decision not to revoke the cancellation decision is the correct or preferable decision: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [65] (Sackville J), [146] (Kenny J); Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J). As such, the question is not whether this Court agrees with the Minister’s non-revocation decision, but only whether the Minister’s decision is tainted with a legal error such that no valid decision has been made.
13 The applicant is a citizen of New Zealand. He arrived in Australia at the age of 19 on 12 August 1995. He has departed and entered Australia on a number of occasions but has been generally resident in Australia since March 2000 when he was 23 years old. On each arrival he was granted a Class TY Subclass 444 Special Category (Temporary) Visa. The applicant departed Australia after the commencement of these proceedings and before the hearing of the application.
14 On 21 November 2008, the applicant was convicted on a plea of guilty by the District Court of New South Wales of the offence of supplying a prohibited drug in not less than a large commercial quantity. He was sentenced to 12 years imprisonment, with a non-parole period of eight years.
15 The applicant’s visa was cancelled under s 501(3A) of the Act on 20 April 2015. A letter of the same date advised the applicant that his visa had been cancelled under the mandatory cancellation power in s 501(3A) of the Act because the Minister was satisfied that:
(1) the applicant did not pass the character test as he had a substantial criminal record because of s 501(7)(a), (b) or (c) of the Act by reason of his conviction on 21 November 2008 of Supply Commercial Quantity of Prohibited Drug and his sentence of 12 years imprisonment; and
(2) he was serving a full-time sentence in a custodial institution because he had committed an offence under Australian law.
16 The letter further advised that, while the applicant’s visa had been cancelled, the applicant had an opportunity to make representations about revoking the decision to cancel the visa.
17 Enclosed with the letter were copies of the following:
(1) the Conviction, Sentences and Appeals report from the New South Wales Department of Corrective Services dated 17 April 2015;
(2) a Prisoner Immigration Report dated 4 February 2009; and
(3) the Sentencing Remarks of the New South Wales District Court on 21 November 2008.
3.3 The applicant’s request for revocation
18 By a letter dated 22 May 2015, the applicant’s solicitors requested revocation of the mandatory cancellation decision. Submissions were enclosed in support of that request. The submissions addressed the applicant’s background, that he had a clean history and had not committed any offences before his arrest, mitigating aspects, factors taken into account by the sentencing judge, and the applicant’s exemplary conduct during his incarceration. The submission also specifically addressed factors identified as relevant in Direction No. 65, namely, the nature and seriousness of the applicant’s offending, the risk to the Australian community should he reoffend, the best interests of minor children, expectations of the community, and other considerations including the strength, nature and duration of his ties to Australia. As to the risk of reoffending, the applicant’s solicitors submitted that he would not be a risk to the Australian community and that it was unlikely he would reoffend having regard among other things “to the level of rehabilitation that he has achieved and also the extremely strong support of his long-term de facto partner… and his close circle of friends.” Furthermore, while the submission noted that there were no children who would be affected by the decision, it explained that the applicant and his partner had been trying to have a child for a number of years prior to his arrest, had commenced an IVF program, and “intend to have children which they intend to raise in Australia as their home as this is the place both of them have their support network.” Finally, the submission pointed to the applicant’s positive contribution to the Australian community and his de facto relationship with his fiancée for 12 years as demonstrative of his strong ties to the Australian community. The submission referred to the applicant’s partner as having visited him during his imprisonment almost every week and explained that she had devoted herself considerably to the survival of their relationship. It pointed to the severe prejudice that their relationship would suffer if the applicant were removed from Australia, including for the applicant’s partner’s mental health, and stated that for personal reasons supported by a psychologist report, returning to New Zealand was not an option for the applicant’s partner.
19 Character references and other documents were attached to the submission. These included a letter from the applicant pointing among other things to the fact that his partner’s “unflinching support added to my resolve to rehabilitate myself.” The applicant’s partner also wrote in support of his request for revocation of the cancellation decision emphasising the strength of their relationship and the depth of her support of, and commitment to, the applicant.
20 A further submission was made by the applicant’s solicitors on his behalf on 30 June 2015.
3.4 The non-revocation decision
21 On 30 October 2015, the Minister refused to revoke the original decision to cancel the applicant’s visa.
3.4.1 The Departmental submission
22 The Minister’s decision is recorded at the end of a detailed Departmental submission on the question of whether the cancellation decision should be revoked (the issues paper). The issues paper attached all of the material sent for comment to, and received from, the applicant or submitted on his behalf. It summarised that material, as well as quoting at length from the material, including from the letter from the applicant’s partner, the psychologist’s report as to the impact upon the applicant’s partner if he were removed, and the sentencing remarks. No complaint is made of the accuracy, fairness or completeness of the information summarised in the issues paper and in my view, it set out in a balanced way the various factors arising from the material in favour, and against revocation, of the cancellation decision. This included describing the strength of the applicant’s relationship with his partner, the submission that the applicant’s partner had been unaware of the applicant’s drug-taking, her support for him notwithstanding how upset she was by his offending behaviour, and the impact which his removal from Australia may have upon her. Under the heading “Risk to the Australian Community”, the issues paper also advised that:
If Mr POROA is permitted to remain in Australia he has stable accommodation available to him in the unit he bought with his partner… Mr POROA has the strong support of [his partner], and others, in the community. … his representative cites the “extremely strong support of his long-term de-facto partner… and his close circle of friends”, together with the rehabilitation achieved by Mr POROA, as reasons why he is unlikely to re-offend.
23 The issues paper then quoted at length from the applicant’s partner’s letter to the Department in which she states her ongoing support for the applicant and her view that she had no doubt that he would not reoffend if permitted to remain. It concluded on this issue that:
118. In summary, factors which you may consider may serve to reduce the risk of Mr POROA re-offending include: his lack of antecedent criminal history; the sentencing judge’s estimations of his good rehabilitation prospects and his opinion that Mr POROA is unlikely to re-offend; his very positive performance in custody; the various rehabilitation activities he has completed and his period of abstinence; his remorse and demonstrated insight into his offending; his access to stable accommodation and employment; and the strong support he has from his partner and friends in Australia. However it is also open to you to note that Mr POROA has a significant history of long-term polysubstance abuse and his ability to sustain his current abstinence is largely untested in the community.
119. Having regard to all of the evidence available to the department it is open to you to find Mr POROA poses a low risk of reoffending, as his representative submits. However, you may consider that great harm is attached to this low risk, should Mr POROA reoffend by committing an offence similar to supplying a prohibited drug in greater than a large commercial quantity.
24 In his reasons at [11], the Minister stated that, in considering whether he is satisfied that there is another reason why the cancellation decision should be revoked:
I assessed all of the information set out in the Issues Paper and attachments. In particular, I considered Mr POROA’s representations and the documents which he has submitted in support of his representations regarding why the original decision should be revoked.
25 It follows that it can be inferred that the Minister considered the issues paper and its contents: Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 (Ayoub) at [49] (the Court). Thus, as the Minister submitted, the Minister’s reasons need to be read together with the issues paper: BCR16 at [25].
26 The Minister then summarised the reasons given by Mr Poroa for revocation, including “the harmful effects upon his spouse if the decision to cancel of [sic] his visa is not revoked” (Minister’s reasons at [12]).
27 The Minister concluded that the applicant had made representations in accordance with the invitation as required by s 501CA(4)(a) of the Act (Minister’s reasons at [3]).
28 The Minister found that the applicant did not dispute the information in the sentencing remarks of the District Court regarding his criminal conviction and sentence, and therefore found that he was not satisfied that the applicant passed the character test. As a result the Minister found that the criterion in s 501CA(4)(b)(i) of the Act was not met (Minister’s reasons at [9]).
29 However, the Minister was not satisfied that there was another reason why the cancellation decision should be revoked on the ground that, while the risk of harm was low, it could not be ruled out and great harm could be inflicted on the Australian community if the applicant should reoffend (Minister’s reasons at [55]-[57]). That factor, in turn, was found to outweigh the other considerations in favour of revocation (Minister’s reasons at [58]). The issues on judicial review challenge the legality of this exercise of discretion.
4.1 Alleged failure to assess risk of harm (ground 3)
30 As the applicant accepted at the hearing, in Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; (2015) 230 FCR 367 (Moana) the Full Court:
(1) by majority (Rangiah J (with whose reasons North J agreed)) agreed with Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 (Tanielu) that the Minister was required to consider risk of harm in deciding whether to cancel a visa on character grounds under s 501(2), albeit for different reasons from those of Mortimer J; and
(2) overruled Tanielu in so far as her Honour held that the Minister is bound to evaluate the likelihood of any future harm to the Australia community.
31 The decision in Moana was approved subsequently in Ayoub.
32 The applicant sought to distinguish Moana and later decisions. First, the applicant submitted that central to the reasons of Rangiah J was the proposition that the subject matter, scope and purpose of s 501(2) did not require the Minister to adopt a mechanical approach to the evaluation of risk of harm to the community. However, in his submission, s 501CA(4) had a different subject matter, scope and purpose because it conferred a power to revoke automatic cancellation of a visa, as opposed to a power to cancel a visa in the first place. As a result, he submitted that the Minister was required to assess the likelihood of future harm in deciding whether the person passes the character test under s 501CA(4)(b)(i). On this construction, Dr Churches for the applicant submitted that s 501CA(4)(b)(ii) provided only a “safety net”.
33 I do not agree. The submission with respect oversimplifies the ratio in Moana. In that case, Rangiah J held that the Minister was bound to take risk to the Australian community into account under s 501(2) of the Act in the exercise of discretion to cancel a visa on the basis that:
49. The Minister engages in only one exercise of power under s 501(2). That exercise of power involves two stages: firstly, considering the threshold question of whether the Minister reasonably suspects that the person does not pass the character test and whether the person has satisfied the Minister that he or she passes the test; and secondly, considering the exercise of the discretion. The Minister submits that in the absence of the specification of any considerations relevant to the exercise of the discretion, it is for the Minister to determine the matters which he or she regards as relevant. That argument assumes that the threshold question is entirely divorced from the exercise of the discretion. However, my opinion is that the Minister’s consideration of the character test necessarily informs his consideration of the discretion. It is the relationship between the threshold question and the discretion in the exercise of a single power that leads me to conclude that risk to the Australian community is a mandatory relevant consideration.
50. As Mortimer J noted in Tanielu, each of the criteria set out in s 501(6) which may cause a person to fail the character test involves protection of the Australian community, in the sense of protection against some kind of harm, disadvantage or unacceptable or undesirable consequence arising from allowing a person to enter or remain in Australia.
34 However, his Honour rejected the proposition that it could be implied from the subject-matter, scope and purpose of the Act that the Minister must evaluate risk of harm in a particular way for the following reasons:
72. The cases concerning s 501A … establish that the seriousness of an offence may, of itself, lead the Minister to conclude that a visa should be cancelled in the national interest. I consider that the seriousness of an offence or other relevant past conduct may also lead the Minister to conclude that a visa should be cancelled in the discretion under s 501(2) without evaluating the likelihood that the visa holder will reoffend or engage in harmful conduct. 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. In a particular case, however, the Minister may take the view the seriousness of the offence or conduct means that any risk is intolerable. It follows that in exercising the discretion in s 501(2), the Minister is not bound to engage in an evaluation of the likelihood of a person engaging in future conduct which may cause harm
35 While the issue in Moana concerned cancellation of a visa under s 501(2) of the Act, the same reasoning applies with equal force to the exercise of discretion to revoke a cancellation decision under s 501CA. First, given that revocation of a cancellation decision has the effect under s 501CA(5) that cancellation is taken never to have occurred, the question for the Minister in the exercise of discretion under s 501CA(4)(b)(ii) is ultimately the same question as that under s 501(2): should the visa be cancelled? Secondly, in common with s 501(2), at the stage at which the Minister has a discretion (i.e. after cancellation) the Minister engages in only one exercise of power under s 501CA, namely, whether the person passes the character test and whether there is another reason to revoke the cancellation. Thirdly, that being so, there is no reason why the relationship between the character test in s 501CA(4)(b)(i) should not equally inform the discretion conferred by s 501CA(4)(b)(ii) so as to render risk a relevant consideration, but without implying that the Parliament made any presumption as to how the discretion should be exercised, as the majority in Moana held. In the fourth place, there is no foothold in the text of s 501CA(4) for implying that the Minister should consider risk in considering whether the person passes the character test under s 501CA(4)(b)(i) rather than in the exercise of discretion under s 501CA(4)(b)(ii). To the contrary, as the Minister accepted, the Minister must revoke the cancellation decision if satisfied that the person passes the character test under s501CA(4)(b)(i), despite the use of the word “may” in the subsection which might otherwise suggest the existence of a discretion. This follows from the fact that a finding that a person passes the character test means that the basis on which the original cancellation decision was made under s 501(3A) (that the person did not pass the character test) was wrong.
36 In the alternative, the applicant submitted that s 501CA(4)(b)(ii):
…shows a parliamentary intent that … the iron law of the objective failure of the character test can be surmounted by going to (ii), and in our submission, another reason would go to looking to the expansive view of risk assessment [being that adopted by Mortimer J]. Otherwise, in our submission… sub (4), this revocation power, is simply going to be stymied by the objective assessment of failure or character test. We say that the legislative provision would end up with no work to do if one is always deemed to have failed the character test for having been imprisoned 12 months or more.
37 That submission cannot be accepted. Quite apart from other difficulties, there is simply no reason to imply a discretion in s 501CA(4)(b)(i) when s 501CA(4)(b)(ii) expressly confers a broad discretion to revoke the cancellation decision where the Minister is not satisfied that the person passes the character test.
38 Further and in any event, the appellant’s submission that there was a failure properly to evaluate the likelihood of risk akin to that in Tanielu would not have succeeded. In Tanielu, the Minister made no express findings about the likelihood of re-offending; nor, the Court held, did the Minister find (or could rationally have found) that the offences were so serious that any risk of harm was too great (Tanlielu at [109]). Rather Mortimer J held that the Minister had speculated only that there remains a “potential risk” of re-offending without drawing any connection between the characteristics of the particular applicant and the risk of re-offending (Tanielu at [110]).
39 No such deficiencies are present in the Minister’s decision here, contrary to the applicant’s submissions. The Minister made an express finding as to risk of harm, namely, a “low risk”, but of “great harm” if the applicant should reoffend in a similar fashion which the Minister could not rule out. In this regard, as Mortimer J observed in Tanielu, “[i]t is well established that, where the harm which might be caused by future conduct is particularly serious, a lesser likelihood of the conduct occurring may be required for the risk to be identified at a level requiring a particular decision to be made” (at [103]). Furthermore, the risk was assessed by the Minister by relying on the applicant’s particular characteristics, having regard to such considerations as: the judge’s sentencing remarks; the circumstances which led the applicant to offend including his drug addiction; the strong community support the applicant has from his partner, family members and friends; the drug specific rehabilitation that the applicant has undertaken; and the fact that, as his abstinence from illicit drug use was in the context of his criminal custody, his ability to refrain in the community in the long-term is largely untested. Irrespective of whether this Court would have reached the same conclusion if seized of the issue, the applicant’s submission that the Minister has merely “formed his conclusions here without going any deeper than speculating as to the possibilities of great risk, great harm” cannot be sustained; nor the submission that the Minister did not adequately consider the material before him. Ultimately the applicant’s submissions go no higher than to invite this Court impermissibly to engage in a review of the merits of the Minister’s decision: see above at [12].
4.2 Allegedly unreasonable impact on the applicant and his wife (ground 4)
40 Legal reasonableness or an absence of legal unreasonableness is an essential element of lawfulness in decision-making, it being implied that Parliament intended that a discretionary power must be exercised reasonably: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) at [26], [29] (French CJ), 362 [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J). In determining whether an administrative decision is vitiated by legal unreasonableness, it is essential first to bear in mind that the Court’s jurisdiction is strictly supervisory: Li at [66]. As the Full Court emphasised in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 (Eden) at [59]:
It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision-maker… Nor does it involve the Court remaking the decision according to its own view of reasonableness…
41 Secondly, two contexts in which the concept of legal unreasonableness may be employed have been identified in the authorities. As the Full Court explained in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (Singh) at [44] with reference to the High Court’s decision in Li:
Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: Li at [27]-[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error.
42 Thirdly, in assessing whether a particular outcome is unreasonable, the Court held in Eden at [62] that:
…it is necessary to bear in mind that within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion… Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness… Such a decision falls within the range of possible lawful outcomes of the exercise of the power…”.
43 Finally, where reasons for the decision provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable: Eden held at [64].
4.2.2 Alleged unreasonableness in assessing effect of non-revocation
44 The applicant submitted that the Minister’s decision was unreasonable on the ground that there was no analysis of the impact of non-revocation upon the applicant’s partner. The submissions also suggest that the decision is invalid by reason of a failure by the Minister to have regard to the impact on the applicant’s wife as a relevant (mandatory) consideration although that issue is not raised on the pleadings.
45 In support of this ground, the applicant relied upon the following passage from the decision of the Full Court in Ayoub:
Mere advertence to a matter required to be taken into consideration may not be sufficient to establish that it has been properly considered: cf. Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113 at [100], (2011) 179 LGERA 458 at 478 per Cowdroy J. The serious consequences confronted by an individual who has had a visa cancelled pursuant to s 501 may well require, in an appropriate case, such a conclusion being reached. Even a ritualistic incantation of a risk being, for example, an “unacceptable risk” or a “grave and serious risk”, may not be sufficient to clothe a statement of reasons with impunity. (emphasis added)
46 However, these statements were made in the context of the implied statutory requirement that the Minister consider the risk of harm in the exercise of discretion under s 501(2) of the Act (see above at [30]-[31]). No basis was suggested by the applicant for the drawing of any implied requirement to consider the impact of a non-revocation decision upon the applicant’s partner or indeed any other consideration beyond risk of harm. Nor is the Minister bound under s 499 to consider the matters identified in Direction No. 65: see above at [10]. In the context, therefore, of the broad discretion conferred on the Minister by s 501CA(4)(b)(ii), I do not consider that the decision here could be legally unreasonable by reason of a failure by the Minister to analyse the impact of a non-revocation decision upon the applicant’s partner or indeed upon him. In this regard, it is important to emphasise that an evaluation of whether an administrative decision is legally unreasonable, and therefore outside the range of possible lawful possible outcomes, regard must be had to the terms, scope and policy of the statutory source of the power: see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 (Stretton) at [11]-[12] (Allsop CJ, with whose reasons Wigney J agreed at [90])); see also Eden at 171-172 [63].
47 Further and in any event, the Minister’s reasons disclose that he considered the potential impact of non-revocation on the applicant’s partner in detail: see the Tribunal’s reasons at [21]-[26] and [28]. The potential impacts were also set out in detail in the issues paper. The Minister, however, considered that other factors outweighed those impacts. It cannot therefore be said that the reasons fail to disclose an evident and intelligible justification for the decision, notwithstanding its unfortunate impact upon the applicant and his partner. As such, this ground must be dismissed.
4.3 Alleged breach of procedural fairness (ground 5)
48 The international human rights recognised in the International Covenant on Civil and Political Rights, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR) are not directly enforceable under Australian domestic law: Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (Teoh) at 286-287. However, as the High Court also held in Teoh, that does not mean that Australia’s ratification of an international instrument such as the ICCPR had no consequences under Australian domestic law.
49 In line with the principles in Teoh, the applicant submitted that Australia’s entry into the ICCPR gave rise to a legitimate expectation that the Minister would take the right to have a family in Article 23 of the ICCPR into account in making a decision. Article 23 of the ICCPR relevantly provides that:
1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
2. The right of men and women of marriageable age to marry and to found a family shall be recognized.
50 The applicant submitted, however, that there was a breach of procedural fairness by reason of the Minister’s failure to warn of his intention to depart from that expectation:
23. In the instant case the Respondent has never adverted to the Convention standard of the right of men and women “to found a family”, despite the lengthy correspondence from both the Applicant’s solicitor and [the applicant’s partner] about her strongly expressed wish to make a family with the Applicant… [The applicant’s partner] has taken every step to keep her relationship with the Applicant alive, with a view to being able to make a family with him. The failure by the Respondent to factor into his decision-making a recognition of the Convention based right to found a family goes to error of law and consequent judicial review of the Decision.
51 While the Minister pointed to statements in the authorities casting doubt upon the decision in Teoh, the Minister accepted that the principles in Teoh have not been directly overruled and that, for present purposes, they remain good law: see Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 at [81]-[83]; Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at [30]. Applying Teoh, I accept that Australia’s ratification of the ICCPR gave rise to a legitimate expectation that the right to found a family would be taken into account. That such an expectation arises is confirmed by Article 2 of the ICCPR pursuant to which each State Party to the ICCPR relevantly undertook “to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant…” and “to take the necessary steps… to give effect to the rights recognized in the present Covenant”.
52 However, the Minister has in fact taken the substance of the right in Article 23 into account, expressly acknowledging in his reasons that the applicant’s partner has indicated to the department that she is unlikely to relocate to New Zealand with the applicant for personal reasons which she explained (Minister’s reasons at [24]). The Minister also took into account the fact that, if she remains in Australia and the applicant returns to New Zealand, “she will be unable to resume her spousal relationship and pursue further IVF treatment with Mr POROA”, and found that “this is likely to cause [the applicant’s partner] significant emotional and psychological hardship, and may worsen her psychological condition… She may also experience financial and other practical hardships, for instance, in maintaining her existing mortgage commitments” (Minister’s reasons at [25]). The fact that Minister ultimately found that these considerations were outweighed by other considerations does not demonstrate any breach of procedural fairness or other reviewable error. As such, there has been no departure from the requirements of procedural fairness, notwithstanding that the decision was not that for which the applicant and his partner hoped.
53 For the reasons set out above, the application is dismissed with costs to be agreed or assessed.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. |
Associate:
