FEDERAL COURT OF AUSTRALIA

Anaki v Minister for Immigration and Border Protection [2018] FCA 77

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    Introduction

1    The applicant, Edward Anaki, seeks an order that a decision of the Minister for Immigration and Border Protection (Minister) made on 13 February 2017 (decision) to cancel Mr Anaki’s Class TY Subclass 444 special category visa (Visa) under s 501BA of the Migration Act 1958 (Cth) (Act) be quashed.

2    Mr Anaki is a New Zealand citizen who was born in October 1969. He first arrived in Australia as a 16 year old child. He has a lengthy criminal record. Over a 29 year period he has been convicted of 127 criminal offences, 81 of which involved drug offences. He has been sentenced to custodial sentences on 33 occasions; 7 sentences were suspended, 22 were with terms of imprisonment from 2 to 10 months, and 4 were for 12 month terms.

3    On 17 March 2015 Mr Anaki was given notice that his visa was cancelled by a delegate of the Minister under s 501(3A) of the Act (mandatory cancellation). Mr Anaki sought revocation of the decision on 7 April 2015. On 29 January 2016 the delegate decided not to revoke the decision. On 8 September 2016 the Administrative Appeals Tribunal (Tribunal) decided that the decision of the delegate should be set aside and that the mandatory cancellation of Mr Anaki’s visa should be revoked.

4    On 13 February 2017 the Minister made a decision under s 501BA of the Act in the following terms:

I am satisfied that MR ANAKI does not pass the character test because of the operation of paragraph 501(6)(a), on the basis of paragraph 501(7)(c). I am also satisfied cancellation of Mr ANAKI’s visa is in the national interest. I have decided to exercise my discretion under s 501BA of the Act to cancel Mr ANAKI’s visa. I hereby cancel MR ANAKI’s Class TY Subclass 444 Special Category (Temporary) visa. My reasons for this decision are set out in the attached Statement of Reasons.

5    The decision was accompanied by a statement of reasons (reasons) which was signed by the Minister and dated 13 February 2017. It included a summary of the procedural background to the decision, a finding that the Minister is satisfied that Mr Anaki does not pass the character test (which is not disputed in the present application), a consideration of whether or not the visa should be cancelled in the context of the national interest and a consideration of a number of factors going to the exercise by the Minister of his discretion under s 501BA of the Act which include the protection of the Australian community, the best interests of minor children who are affected by the cancellation, the expectations of the Australian community, the strength nature and duration of Mr Anaki’s ties to Australia and the extent of the impediments that Mr Anaki will face in New Zealand in establishing himself and maintaining basic living standards.

6    It is of particular relevance to the current application to draw attention to the following paragraphs of the reasons in relation to the last of these considerations:

[71] I have had regard to the impediments that Mr ANAKI will face in New Zealand in establishing himself and maintaining basic living standards such as are generally available to other citizens.

[72] Mr ANAKI is 47 years of age and the available information indicates he is in relatively good health. The AAT considered that the only extant health issue experienced by Mr ANAKI is his ongoing substance abuse issues which require ongoing support, such as treatment services and counselling. I accept that Mr ANAKI’s removal from Australia may cause a disruption to the support he currently receives for his substance abuse issues. However, I have also considered that substance abuse services are available in New Zealand and these services may be available to Mr ANAKI.

7    Mr Anaki was represented at the hearing by Mr Timothy Boyle of counsel, who appeared on a pro bono basis. The Court is grateful for his assistance. He filed written submissions in advance of the hearing. The Minister was represented by Mr Patrick Knowles of counsel.

8    Mr Anaki relied on the following 2 grounds (a third ground was abandoned at the outset of the hearing):

1.    The Respondent erred in finding that the Applicant would have access to drug rehabilitation programs in New Zealand when there was no evidence before him in relation to that issue.

2.    The Respondent erred in failing properly to consider the impediments to the Applicant’s return because he could not undertake such consideration in circumstances where there was no evidence before him in relation to the accessibility of drug rehabilitation programs in New Zealand.

2.    The relevant law

9    Section 501BA provides:

501BA Cancellation of visa—setting aside and substitution of non-adverse decision under section 501CA

(1) This section applies if:

(a) a delegate of the Minister; or

(b) the Administrative Appeals Tribunal;

makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

Action by Minister—natural justice does not apply

(2) The Minister may set aside the original decision and cancel a visa that has been granted to the person if:

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

(i) paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or

(ii) paragraph 501(6)(e); and

(b) the Minister is satisfied that the cancellation is in the national interest.

(3) The rules of natural justice do not apply to a decision under subsection (2).

Minister’s exercise of power

(4) The power under subsection (2) may only be exercised by the Minister personally.

Decision not reviewable under Part 5 or 7

(5) A decision under subsection (2) is not reviewable under Part 5 or 7.

10    A decision made under s 501BA is a privative clause decision; s 474 of the Act. Accordingly, it is necessary for an applicant seeking to set aside to establish a jurisdictional error; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at [76].

11    In Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220; (2002) 118 FCR 326 a Full Court of the Federal Court (French, O’Loughlin and Whitlam JJ) said of the national interest at [89]:

… The question of what is or is not in the national interest is an evaluative one and is entrusted by the legislature to the Minister to determine according to his satisfaction which must nevertheless be obtained “reasonably” – Re Patterson; Ex parte Taylor at 698 (Gummow and Hayne JJ, Gleeson CJ agreeing).  Callinan J agreed with Kirby J that the constitutional writs do not entitle the judges to substitute for the satisfaction of the Minister the satisfaction of the judges (755). 

12    The broad scope of the power conferred on the Minister by the relevantly similar power under s 501A(2) has been remarked on in many cases. In Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288; (2012) 202 FCR 417 Bromberg J helpfully summarised the effect of the authorities as follows:

43.     The authorities which have considered s 501A(2) (and in a similar context the reference to the national interest in s 501(3)), make it clear that the matters that the Minister may take into account in determining the national interest are largely matters for the Minister: Mandafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220 at [89] (French, OLoughlin and Whitlam JJ); Huynh at [74] (Kiefel and Bennett JJ); Tewao v Minister for Immigration and Citizenship [2011] FCA 1515 at [12] and [32] (Katzman J); Maurangi v The Honourable Chris Bowen MP, Minister for Immigration and Citizenship [2012] FCA 15 at [70] (Lander J); and see also Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [61] (Gleeson CJ and Gumow J); Re Paterson; Ex parte Taylor (2001) 207 CLR 391 at 418-419 (Gaudron J), 502-503 (Kirby J).

44.     The exercise calls for a broad evaluative judgment. It calls for the Minister’s satisfaction in relation to a power that may only be exercised personally by the Minister: s 501A(5). Political responsibility and accountability is reposed in the Minister in relation to a subject matter of wide scope. All of that, strongly suggests that the Minister is left largely unrestrained to determine for him or herself what factors are to be regarded as relevant when determining whether the cancellation or refusal of a visa is in the national interest and thereafter whether to exercise the discretion conferred by s 501A(2).

13    In the context of ground 1 relied upon by Mr Anaki (“no evidence”), the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 (SGLB) (Gummow and Hayne JJ, Gleeson CJ agreeing) said:

39.     To return to the first ground identified in the Federal Court, the "no evidence" ground, nothing in the Act made the question of whether or not the respondent suffered from PTSD a precondition to the exercise of jurisdiction. No question of a "no evidence" ground of jurisdictional error arises.

40.     Moreover, in the absence of any finding of PTSD, the Tribunal would not have been prevented from following the same course and disregarding the respondent's previous inconsistent accounts for the purposes of assessing credibility.  The finding of PTSD was in fact beneficial to the respondent, being offered as the most favourable explanation available for the respondent's conflicting accounts.

14    Of relevance to this ground, and to the question of what factors the Minister is bound to consider, is the following statement of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 (at [15]):

… (b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard (see Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45, at pp 49-50, adopting the earlier formulations of Dixon J. in Swan Hill Corporation v. Bradbury (1937) 56 CLR 746, at pp 757-758, and Water Conservation and Irrigation Commission (N.S.W.) v. Browning (1947) 74 CLR 492, at p 505). By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.

15    Similarly, in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 Robertson J said (at 48):

In Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 at [57], Allsop J, as his Honour then was, said that Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 did not stand for the proposition that a relevant consideration had not been taken into account and the decision-maker thereby had failed to embark on or complete his or her jurisdictional task merely because some piece of evidence which the court thought was relevant in the evidential or probative sense can be seen not to have been weighed or discussed. “Relevant” for this purpose meant that the decision-maker was bound by the statute or by law to take this into account.

3.     Ground 1 – no evidence

16    In ground 1, Mr Anaki contends that the Minister erred in finding that the applicant would have access to drug rehabilitation programs in New Zealand when there was no evidence before him in relation to that issue. He submits that this ground is based on 2 matters, the first of which is the statement in the reasons at [72] that he had “also considered that substance abuse services are available in New Zealand and these services may be available to Mr ANAKI” (emphasis added). The second is that there was nothing in the materials provided to the Minister that would make good either that substance abuse services were, as a matter of fact, available in New Zealand, or that Mr Anaki would possibly be able to avail himself of such services.

17    In that context, Mr Anaki submitted that the Minister had strayed from what was set out in the materials provided to him, and the Department’s submission for decision, where it was noted that:

… The AAT accepted there was a risk that Mr ANAKI may regress into drug addiction without structured rehabilitation, however it made no findings on the comparative availability of rehabilitation support services in Australia or New Zealand.

18    The Tribunal similarly noted that “[r]ehabilitation of that kind may be available to him in Australia and in New Zealand, although I have seen no detailed evidence on this point”.

19    Citing Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 at [196], Mr Anaki contends that the existence and availability of drug rehabilitation programs in the country to which deportation would occur (New Zealand) was critical to the Minister’s consideration of the “extent of impediments if removed”, which he had himself identified as a relevant factor involved in the exercise of his discretion to cancel Mr Anaki’s visa. As a consequence, the absence of evidence in relation to those issues served to undermine the exercise of his discretion, such that he misconceived what the exercise of the statutory power entailed in the present case and accordingly his decision was a purported but not real exercise of the power conferred by the Act.

20    A threshold difficulty with Mr Anaki’s argument is that, as a matter of the proper construction of the reasons, it is apparent that the Minister did not regard the availability of substance abuse services in New Zealand as a critical fact in the exercise of his discretion. The observation in [72] that substance abuse services “may be” available to Mr Anaki demonstrates that the Minister acknowledged that those services may not be available (either because Mr Anaki did not qualify to receive them or for some other reason). Nevertheless, the Minister proceeded to conclude that, on balance, the impediments that Mr Anaki will face upon his return to New Zealand did not outweigh other considerations in favour of the cancellation of his visa. The Minister did not make a factual finding that Mr Anaki would have access to substance abuse services upon his return to New Zealand, rather he found that he may have access to such services. Accordingly, his decision did not depend on any positive factual finding as to the availability of those services. As the Minister’s submissions record, in the absence of a positive finding, there is no reason to impose an obligation that the finding (as to the availability of such services in New Zealand) be supported by evidence.

21    Put another way, the Minister’s jurisdiction did not depend on him making a finding in respect of the availability of particular services in New Zealand. In this regard the “fact” for which there must be “evidence” must be “a precondition to the exercise of jurisdiction”; SGLB at [39]. The reasoning in Madafferi and Gbojueh demonstrate that the matters that the Minister may take into account in determining the national interest are matters for the Minister. Mr Anaki accepts that this is the case, and that the lack of evidence did not go to one of the relevant preconditions to the exercise of the power to cancel. However, he submits that because the existence and availability of drug rehabilitation programs in New Zealand was identified by the Minister as a relevant matter that bore up on his discretion, the “no evidence” ground applied.

22    The difficulty is that the reasoning of the Minister, as noted above, does not reflect a view that the services will be available to Mr Anaki, but only that they “may be”. The Minister did not make the requirement of availability a precondition to the exercise of his discretion. As I have noted, by observing that the services “might” be available, the Minister also contemplated that they might not be. Accordingly, the Minister did not himself make the existence of such services a prerequisite.

23    The consequence of this analysis is that, contrary to Mr Anaki’s submission, a lack of evidence about the type of services available in New Zealand would not amount to jurisdictional error; SGLB at [40].

24    The Minister further submits that he is entitled to inform himself by reference to matters of general knowledge even in circumstances where a court would not be entitled to take the matters on judicial notice. He submits that given the cultural, historical and political similarities between Australia and New Zealand, it was open to the Minister to find that substance abuse services exist in New Zealand. In this regard, the Minister submits that the circumstances of this case are relevantly identical to those considered by Robertson J in Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016) 248 FCR 296 at [69]. In that case, the Tribunal noted that there was no specific evidence of the support available to the applicant in either New Zealand or Samoa, but took into account that at least in New Zealand the applicant would have access to government benefits similar to those available to him in Australia. Justice Robertson found that this statement was no more than a broad proposition as to the availability of government benefits in New Zealand and not one that required evidence as to the amount of a benefit, the terms and conditions of that benefit or the eligibility criteria for that benefit (at [69]). In that case the applicant was “young and in good health”.

25    The position is somewhat different in the present case, where the dependency of Mr Anaki on ongoing support was noted by the Minister, and because substance abuse services are a narrower class of services as compared with the broad concepts of Government benefits or social security. However, for the reasons that I have expressed above, it is not necessary for me to express any concluded view as to whether the Minister can, in effect, take such matters on notice, without the provision of any evidence.

26    Accordingly, for the reasons expressed, I reject ground 1 of the application.

4.    Ground 2 – failure to consider

27    In ground 2, Mr Anaki contends that the Minister could not properly have considered the “impediments” to his return to New Zealand in the absence of evidence regarding the availability of drug rehabilitation programs in that country. This has the consequence that the exercise of discretion by the Minister to set aside the decision of the Tribunal and to cancel his visa miscarried. In this context Mr Anaki draws attention to aspects of the decision of the Tribunal where it is noted that Mr Anaki’s drug addiction was the only significant factor affecting his health and that the hardship Mr Anaki may experience if he is returned to New Zealand “weighs in favour of revoking the cancellation of his visa” (at [118]). He submits that in a case where the Tribunal found that the exercise of discretion was “finely balanced” and one of the factors which weighed in favour of the revocation of the cancellation was the impediment he would face if he returned New Zealand, the finding that substance abuse services were available in New Zealand and may be available to Mr Anaki in circumstances where no evidence supported that finding, amounted to a failure properly to consider the impediments to his return.

28    However, this submission relies on the same incorrect premise as ground 1, namely that the Minister was required to consider the availability of substance abuse services to Mr Anaki. Again, the authorities do not support that proposition; see Madafferi and Gbojueh. Nor did the reasoning of the Minister make it a requirement that he do so. I am not satisfied that, in the circumstances, the Minister fell into jurisdictional error on the basis asserted.

5.    Conclusion

29    For the reasons stated, the application must be dismissed and the applicant is to pay the first respondent’s costs.

Associate:

Dated:    14 February 2018