FEDERAL COURT OF AUSTRALIA

Vili v Assistant Minister for Immigration and Border Protection [2017] FCA 1556

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs of and incidental to the application, to be taxed, if not agreed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    On 9 August 2017 the respondent in these proceedings, the Assistant Minister for Immigration and Border Protection (the Honourable Alex Hawke MP) (Assistant Minister), acting under s 501(2) of the Migration Act 1958 (Cth) (the Act), decided to cancel the Class TY, Subclass 444 Special Category (Temporary) visa held by the applicant, Mr Vili Vili (Mr Vili). Mr Vili is a citizen of New Zealand. He is of Tokelau extraction.

2    Mr Vili has applied for the judicial review of the Minister’s decision. The specified ground of review is this:

In making a decision pursuant to the Migration Act the Respondent decision maker engaged in jurisdictional error. Specifically, the Respondent:

1.    The decision maker acted unreasonably, irrationally and illogically in determining that the balancing of factors in the exercise of his discretion supported the cancellation of the Applicant’s visa. In particular and without limitation:

a.    making findings contrary to medical evidence and the views of the sentencing court on reoffending particularly as to the nature of whether he would reoffend and the likelihood of the Australian community suffering significant harm; and

b.    in abrogating the obligation to consider countervailing factors by stating the ‘the Australian community should not tolerate any further risk of harm’ thereby rendering nugatory any factors in this case, and essentially all cases, where a decision maker cannot positively exclude the possibility of any future risk of harm or reoffending.

3    This ground of review and the submissions advanced in support of it are premised upon the correctness of an observation made by Rangiah J, with whom North J, agreed in Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367 at [66] (Moana), in respect of s 501(2):

I consider that in the exercise of the discretion under s 501(2), the Minister is required to consider whether there is a risk of harm to the Australian community posed by the continued presence of the visa holder in Australia and to take into account any such risk.

That view of s 501(2) was not shared by the other judge who constituted the Full Court in Moana: see Jessup J at [9].

4    Sitting in the original jurisdiction, I am, of course, bound by judgments of the Full Court, be they judgments which were unanimous or commanded only a majority. However, as was observed in AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451 at [50] and [51], differing views have been expressed in other cases in the Full Court as to whether or not there is any requirement of the kind described by Rangiah J in Moana. That difference has been referred to as an “unresolved tension” between the majority view in Moana and observations earlier made by Keifel and Bennett JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at [74]: see Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at [36].

5    On its face s 501(2) of the Act does nothing more than state:

(2)    The Minister may cancel a visa that has been granted to a person if:

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

(b)    the person does not satisfy the Minister that the person passes the character test.

The only expressed relevant considerations are those found in paras (a) and (b) of that subsection. If there is a requirement to consider whether there is a risk of harm to the Australian community posed by the continued presence of a visa-holder in Australia and to take into account any such risk that consideration must, therefore, be one which arises by necessary implication if it is to be relevant in the sense described by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.

6    However this may be, it is unnecessary in the circumstances of the present case to seek to resolve the “unresolved tension” to which I have referred. That is because it is manifest from the Assistant Minister’s reasons that he has expressly considered whether there is a risk of harm to the Australian community posed by Mr Vili’s continued presence in Australia. The question is instead whether, in so doing, the Assistant Minister has committed a jurisdictional error of the kind alleged in the originating application.

7    Notwithstanding our derivative legal heritage from the United Kingdom, there is, as Messrs Aronson, Groves and Weeks accurately observe in Judicial Review of Administrative Action and Government Liability (6th ed, Law Book Co, 2017), at [6.390] (Aronson), a “gap between the two countries” which:

...remains very large, despite both countries shifting position. England is actively considering a merger of “unreasonableness” and “proportionality”, and both grounds are markedly more substantive. In Australia, the High Court’s landmark decision in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, states that “unreasonableness” is no longer reserved for utterly bizarre administrative action, and the Federal Court is showing signs of using that ground as a catch-all or marker for those jurisdictional errors which are “residual” in the sense that they cannot be easily labelled with the well-recognised “generic review grounds”.

8    The reference in the passage quoted to the High Court’s landmark decision is a reference to Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li). In that case, at [68], Hayne, Keifel and Bell JJ stated:

The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say (one) that it is so unreasonable that no reasonable person could have arrived at it.

A narrower conception of the content of the jurisdictional error ground of unreasonableness is evident in the judgment of Gageler J: see [113]. The view expressed in the joint judgment represents the considered view of a majority of the High Court in Li. That view binds this Court both in the exercise of appellate and original jurisdiction.

9    Quite what the metes and bounds of that arguable departure from a narrower view of unreasonableness may be is moot. The learned authors of Aronson opine of it, again at [6.390] that:

The genie may now be out of the bottle.

If so, the genie is at present moving in mysterious ways, given the course of intermediate appellate authority in this Court in respect of endeavours to apply the majority view in Li to the facts of particular cases: see in this regard in the Full Court Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 and Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29. I note that in Minister for Immigration and Border Protection v SZVFW (2017) 248 FCR 1 at [38], an endeavour was made to distil from prior authority and in a non-exhaustive way certain general principles in relation to the jurisdictional error ground of unreasonableness:

The following general principles may be extracted from the three leading authorities referred to immediately above (further general guidance is provided by the Full Court’s decision in Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158):

•    there is a legal presumption that a statutory discretionary power must be exercised reasonably in the legal sense of that word (Li at [63] per Hayne, Kiefel and Bell JJ; Singh at [43] per Allsop CJ, Robertson and Mortimer JJ; Stretton at [4] per Allsop CJ and at [53] per Griffiths J);

•    nevertheless, there is an area within which a decision-maker has a genuinely free discretion, which area is bounded by the standard of legal reasonableness (Li at [66]; Stretton at [56] per Griffiths J);

•    the standard of legal reasonableness does not involve a court substituting its view as to how a discretion should be exercised for that of a decision-maker (Li at [66]; Stretton at [8] per Allsop CJ and at [76] per Griffiths J);

•    the legal standard of reasonableness is not limited to what is in effect an irrational, if not bizarre, decision and an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified (Li at [68]);

•    in determining whether in a particular case a statutory discretion has been exercised unreasonably in the legal sense, close attention must be given to the scope and purpose of the statutory provision which confers the discretion and other related provisions (Li at [74]; Stretton at [62] and [70] per Griffiths J);

•    legal unreasonableness “is invariably fact dependent” and requires a careful evaluation of the evidence. The outcome of any particular case raising unreasonableness will depend upon an application of the relevant principles to the relevant circumstances, rather than by way of an analysis of factual similarities or differences between individual cases (Singh at [48]; Stretton at [10] per Allsop CJ and at [61] per Griffiths J);

•    the concept of legal unreasonableness can be “outcome focused”, such as where there is no evident and intelligible justification for a decision or, alternatively, it can reflect the characterisation of an underlying jurisdictional error (Singh at [44]; Stretton at [12]-[13] per Allsop CJ);

•    where reasons are provided, they will be the focal point for an assessment as to whether the decision is unreasonable in the legal sense and it would be a rare case to find that the exercise of a discretionary power is legally unreasonable where the reasons demonstrated a justification (Singh at [45]-[47]).

10    On Mr Vili’s behalf, it was submitted that the reasoning of the Assistant Minister demonstrated an arbitrary decision based upon the view that “the Australian community should not tolerate any further risk of harm”. It was put that the Assistant Minister did not make a decision taking into account that the Australian community does tolerate some risks of harm. Rather, it was submitted that the Assistant Minister had imposed a personal view about Australia not tolerating any risk whatsoever of possible offending and did not engage in a process of balancing of countervailing factors. The submission acknowledged that the decision-maker had referred to countervailing factors. It was put that that reference was not sufficient, because what was evident was a personal view of the Assistant Minister which superseded consideration of all relevant factors. It was put that this demonstrated an arbitrary decision made on a false premise, notwithstanding views expressed in the sentencing court and also a psychologist’s view on risk to children and others.

11    Unsurprisingly but hardly irrelevantly, the Minister’s submissions took as their starting point the axiomatic proposition that the reasons of an administrator should not be read narrowly and with an eye for error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

12    Obviously enough, consideration of the merits, if any, of the ground of review requires some engagement with the Minister’s reasons and the material before him. Included in the material before the Minister were the sentencing remarks of the Chief Justice of the Supreme Court of the Northern Territory in sentencing Mr Vili in respect of two offences of engaging in sexual intercourse with a child under the age of 16 years. Mr Vili was convicted and sentenced upon a plea of guilty in respect of these offences. He was sentenced to imprisonment for a period of 12 months with a direction that this sentence be suspended after he had served a period of imprisonment of two months. The maximum penalty for the offences concerned was imprisonment for 16 years.

13    The sentence concerned was sufficient to engage the definition found in s 501(7)(c) of “substantial criminal record” for the purposes of the character test set out in s 501(6). No challenge is made to the existence of a foundation for the Minister’s reasonable suspicion in terms of s 501(2)(a). Further, no endeavour was made to satisfy the Minister that Mr Vili passed the character test as contemplated by s 501(2)(b). Even so, serious though the offences concerned were, it is obvious enough from the maximum penalty specified that the Chief Justice must, in sentencing, have regarded the offending conduct as at the lower end of a range of conduct embraced by the offence provision. This was so even had Mr Vili not pleaded guilty, as his Honour observed he would in that event on conviction have sentenced him to imprisonment for 16 months. That is another marker of a relative seriousness of the offence.

14    That particular offending conduct on the part of Mr Vili is a part of a range of conduct extending for almost a decade, revealed in the National Police Certificate of 19 March 2017 which also formed part of the material before the Minister.

15    Mr Vili was sentenced on 25 February 2011. At that time, the Chief Justice expressed the opinion that Mr Vili had quite “sufficient recognition of the seriousness of your offending [conduct] and that you are unlikely to offend again.” His Honour was moved to impose a term of actual imprisonment “to reflect the fact that this offending is as serious as it obviously is”.

16    The Assistant Minister’s reasons reveal a very close analytical engagement with the cause of Mr Vili’s offending conduct, both in terms of the offences which engaged the statutory power [under s 5.01(32] as well as other offences.

17    Having regard to the nature of the challenge made to the Assistant Minister’s decision, it would do that official less than justice not to set out in full the discussion which appears in the Assistant Minister’s reasons under the heading “Risk to the Australian Community” at [22] to [33]:

22.    I have considered whether Mr VILI poses a risk to the Australian community through reoffending by having regard to any mitigating or causal factors in his offending, and giving consideration to the steps Mr VILI has undertaken to reform and address his behaviour. I have also taken into account Mr VILI’s overall conduct in the custodial and non-custodial environment, and his insight into the offending.

23.    I have considered sentencing remarks and note Mr VILI had been consuming alcohol at the time of the offending. I also note Mr VILI’s statements that he was only 19 years old and not in the right state of mind when the offending occurred. I also note Mr VILI was intoxicated when he committed some of his subsequent offences. In relation to his most recent offending in 2017, I note Mr VILI states he consumed alcohol to celebrate his partner’s 21st birthday and cannot recall events that took place that night.

24.    I accept Mr VILI has made some progress with his rehabilitation and note he is currently seeking counselling and alcohol rehabilitation in order to positively change as he is aware that alcohol has had negative impacts on his overall wellbeing.

25.    I have given regard to a psychologist report from Mr Donald Emslie dated 20 April 2017. I note Mr VILI has been attending therapy since 6 April 2017 after referral from his General Practitioner for alcohol abuse and that he has been co-operative during his sessions. I note Mr VILI became extremely depressed and began drinking excessively after breaching his parole conditions by not reporting to parole. Mr VILI states that he was not advised of this requirement by the releasing Corrective Services officer.

26.    I note the psychologist states that Mr VILI has greatly reduced his alcohol intake drinking the occasional one beer a month and does not use illicit drugs. The psychologist states Mr VILI has matured, is employed, is engaged to be married, plans to save for a house and is addressing his misuse of alcohol by learning in therapy to regulate his emotions and stress levels. I note the psychologist is of the opinion that removing Mr VILI will undo the progress he is making, disrupt his family and his future contribution to the Australian community.

27.    I acknowledge Mr VILI’s remorse for his offending and note he states he has learnt from his mistakes, has not since committed any similar offences and will not reoffend. I also note the psychologist states that Mr VILI reports no interest in children, has empathy for the victims and has taken responsibility for his actions by changing his behaviour.

28.    I note the Judge expected Mr VILI had sufficient recognition of the seriousness of his offending and considered that Mr VILI was unlikely to reoffend.

29.    I have considered letters of support provided by Mr VILI’s partner and her mother attesting to his good character and stating he has positively changed. I have also considered a letter of support from Reverend Tetaulu Sekaio who considers Mr VILI is a ‘great person’, remorseful for his offending and is seeking to change. I note Mr VILI has the support of his family, extended family, fiancés family and the Tokelau community and consider the support he receives may further assist his rehabilitation.

30.    Mr VILI’s criminal records lists convictions or findings of guilt for contravene direction or requirement, breach of order suspending sentence and three counts of fail to comply with reporting. I consider Mr VILI’s multiple breaches show a disregard for the law.

31.    I also have concerns about the extent of Mr VILI’s rehabilitation. It appears Mr VILI has had issues with alcohol since his offending in 2011, however, he only sought assistance in April 2017 after receiving the Notice of Intention to Consider Cancellation. Further, Mr VILI’s most recent conviction occurred on 20 February 2017 for commit public nuisance, contravene direction or requirement and assault or obstruct police officer. I note Mr VILI states he was intoxicated when he offended in 2017 which occurred on his partner’s birthday.

32.    I do not consider this conduct is consistent with the submission that Mr VILI’s problems with alcohol are under control. Equally, I find the submission that a much such as Mr VILI, with a demonstrated problem with alcohol, could manage this problem by minimising intake demonstrates a lack of insight into the dangers of his drinking.

33.    In light of Mr VILI’s ongoing use of alcohol and its relationship with his offending, I find there is a likelihood that Mr VILI will re-offend. In relation to Mr VILI’s risk of reoffending in a sexual manner, I consider that the risk is low. If Mr VILI did engage in further criminal conduct of a similar nature, it could result in conduct that could cause psychological harm to a member of the Australian community.

18    Also relevant are the Assistant Minister’s observations under the heading “Expectations of the Australian Community”:

35.    I note that Mr VILI submits that his offence is not one that is abhorrent to the Australian community. I do not accept this submission.

36.    I find that the Australian community would expect non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where 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 cancel the visa of such a person. Mr VILI has breached this trust as he has been convicted of two counts of sexual intercourse with child under the age of 16 years in Australia.

19    The Minister made express reference at [37] to [51] under the heading “Ties to Australia” to particular familial and other ties to Australia developed by Mr Vili since he arrived here at age 7 in 1998. The Minister also addressed expressly at [52] to [58] under the heading “Extent of Impediments if Removed” consequences which would attend Mr Vili’s deportation to his country of citizenship, New Zealand, at his present age, 26.

20    Having done this, the Minister made the following observations:

61.    Mr VILI has committed serious crimes, that of two counts of sexual intercourse with child under the age of 16 years, which is of a sexual nature, and involved vulnerable members of the community, that being minors. Mr VILI and non-citizens who commit such offence should not generally expect to be permitted to remain in Australia.

62.    I find that the Australian community could be exposed to great harm should Mr VILI reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr VILI. The Australian community should not tolerate any further risk of harm.

63.    I found the above consideration outweighed the countervailing considerations in Mr VILI’s case, including the impact on his partner and family members, his length of residence in Australia and the hardship he will face in resettling in New Zealand. I have also considered the length of time Mr VILI has made a positive contribution to the Australian community through his employment and community involvement and or the consequences of my decision for other family members.

64.    I am cognisant that where significant harm could be inflicted on the Australian community even strong countervailing considerations are generally insufficient for me not to cancel the visa. This is the case even applying a higher tolerance of criminal conduct by Mr VILI, than I otherwise would, because he has lived in Australia from aged seven.

65.    In reaching my decision I concluded that Mr VILI represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.

21    The reference in the ground of review to “countervailing factors” included also views expressed by a consultant psychologist, Mr Emslie, in a report of 20 April 2017 which was before the Minister and expressly referred to by him. In that, Mr Emslie opined:

Vili Vili has shown remorse for his offences (court transcript). He has empathy for the victims and reports he is taken responsibility for his actions by changing his behaviour. He has plans for the future, is engaging in therapy to address his alcohol abuse and does not use illicit drugs.

In my opinion, sending Vili Vili back to Tokelau will undo the progress is making, disrupt his family and his future contribution to the Australian community. Vili has matured, and is still maturing, in his attitude towards relationships and life. He has a job, is engaged to be married, plans to save for a house and is addressing his misuse of alcohol by learning, in therapy, to regulate his emotions and stress levels.

22    A particular focus in the submissions for Mr Vili was on [64] of the Assistant Minister’s reasons. It is axiomatic that this paragraph must be read in the context of the reasons as a whole. As I see it, what the Assistant Minister has done, and done in some detail is to assess risk, to note the particular harm occasioned by the offences which engaged the statutory power, to look at in the context of a continual behaviour and to balance that against particular countervailing factors which, again, he took pains to detail at some length in his reasons. The Minister concluded at [33] that the risk of re-offending “in a sexual manner” was low, but that Mr Vili’s multiple breaches (a reference to the continuum of offending conduct) showed a “disregard for the law” at [30]. He also made reference at [32] to “a demonstrated problem with alcohol”.

23    In effect what the Minister has done, in my view, is to conclude that even though the risk of an offence which would entail significant harm, the sexual offending, is low, there is a risk having regard to the overall continuum of conduct and this risk is one which will not be tolerated. In so doing, the Minister, in my view, as a political officer is entitled to do, has formed an assessment, of or made a value judgment in respect of, Australian community values. That type of assessment is not forbidden by s 501(2). He has balanced that and a particular risk against very personal countervailing factors. In the end, what the Minister has done is what Parliament has consigned to him. He has exercised a discretion. That exercise in terms of conclusions reached, is well-grounded and well open on the material before the Minister.

24    It is very important in respect of the exercise of this Court’s judicial review jurisdiction that there be no descent into the separate function of what the Constitution terms of the Queen’s Ministers of State for the Commonwealth to make value judgments on the merits. The jurisdictional error ground of unreasonableness is certainly fraught in the sense that it necessarily entails the formation of a judicial view as to whether that error has been committed in a particular case. But there is a definite boundary, albeit one that meets the bounds of which in light of the majority view in Li are not sharply delineated, across which a judge must not stray.

25    I do not see in this case an arbitrary decision by the Assistant Minister to the exclusion of the merits of the individual case. Those merits have plainly enough been set out in full both for and against the making of the visa cancellation decision. It is just one of those difficult cases which fall to Ministers to make. Within the bounds of reasonableness and absent any other jurisdictional error, those Ministers are answerable not to this Court but to the Parliament and, through a free press, to a wider court of public opinion. The Assistant Minister has not, in my view, rendered nugatory the counterveiling factors. All he has done is weigh them in the balance against a risk assessed as low, which entailed, if it manifested itself a significant element of harm. This, he was entitled to do.

26    For these reasons, the application will be dismissed.

Associate:    

Dated:    19 December 2017