FEDERAL COURT OF AUSTRALIA

Hay v Minister for Immigration and Border Protection [2018] FCA 124

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the costs of the respondent, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

THE APPLICATION

1    Mr Hay challenges the Minister’s cancellation of his visa and applies under s 467A Migration Act 1958 (Cth) seeking:

1.    A writ of certiorari issue to quash the decision made by [the Minister] on 13 July 2017.

2.    A writ of mandamus issue directing [the Minister] to reconsider [Mr Hay’s] revocation request according to law.

3.    An order that [the Minister] pay [Mr Hay’s] costs of this proceeding.

2    The grounds of the application are as follows:

1.    [The Minister’s] decision was affected by jurisdictional error in that he failed to take into account relevant considerations.

Particulars

(a)    [the Minister] failed to consider the length of time that [Mr Hay] spent in Australia without conviction.

(b)    [the Minister] failed to consider the impact that time spent in prison and immigration detention would have on [Mr Hay’s] risk of reoffending.

(c)    [the Minister] failed to consider that [Mr Hay’s] plea of "not guilty" was consistent with a denial of the offence.

2.    [The Minister's] decision was constitutionally invalid.

Particulars

(a)    on 13 July 2017 [the Minister] made a decision under section 501(3A) of the [Act].

(b)    Section 501(3A) of the [Act] is invalid because it purports to confer judicial power of the Commonwealth on [the Minister], contrary to the Commonwealth of Australia Constitution Act.

BACKGROUND

3    Mr Hay is a citizen of the United Kingdom and was born in Scotland on 5 October 1958. He arrived in Australia with his parents on 1 November 1970 when he was 12 years old. Mr Hay has resided continuously in Australia save for the period from 1 - 14 February 1987.

4    On 1 September 1994, Mr Hay became the holder of a Class BF Transitional (Permanent) visa pursuant to the Migration Reform (Transitional Provisions) Regulations (Cth).

5    On 28 May 2015, Mr Hay was convicted in the County Court of Victoria of a child sex offence and sentenced to 12 months imprisonment. He was also given a 2 year community corrections order commencing upon completion of the term of imprisonment. Mr Hay was also convicted of 2 charges of an indecent act with a child under 16 and was sentenced to 6 months imprisonment, 4 months to be served concurrently, and a $700 fine. He appears to be genuinely remorseful. He says that he has no recollection of such events occurring.

6    On 5 July 2016, his visa was cancelled under s 501(3A) of the Act and on 12 July 2016, Mr Hay made representations under s 501CA(4)(a) of the Act, seeking revocation of the decision to cancel his visa. On 19 May 2017, a submission was prepared by officers of the Department of Immigration and Border Protection to enable the Minister for Immigration and Border Protection to consider whether to revoke the decision to cancel Mr Hay's visa.

7    On 13 July 2017, the Minister decided not to revoke the decision to cancel Mr Hay’s visa under s 501CA(4) of the Act and signed a Statement of Reasons for Decision. Mr Hay was advised of the Minister's decision by letter from the Department dated 18 July 2017.

THE MINISTER'S DECISION

8    In his Statement of Reasons, the Minister noted that he may, pursuant to s 501CA(4), revoke a cancellation decision made under s 501(3A) of the Act if:

(a)    the person makes representations in accordance with the invitation given under s 501CA(3)(b); and

(b)    he is satisfied that the person passes the character test or there is another reason why the original decision should be revoked (at [2]).

9    The Minister noted that Mr Hay had made representations in accordance with the invitation, as required by s 501CA(4)(a) of the Act. Having regard to Mr Hay's criminal record, which was not disputed, the Minister was not satisfied (at [3] and [9]) that Mr Hay passed the character test, with the result that s 501CA(4)(b)(i) of the Act was not met.

10    In considering whether there was another reason why the original decision should be revoked under s 501CA(4)(b)(ii) of the Act, the Minister had regard to the expectations of the Australian community, the strength, nature and duration of Mr Hay's ties to Australia, the extent of impediments that Mr Hay would face if removed to the United Kingdom and the protection of the Australian community.

11    Given what he described as the serious nature of Mr Hay's offences, the Minister concluded (at [16]) that the Australian community would expect that Mr Hay should not hold a visa.

12    In considering the strength, nature and duration of Mr Hay's ties to Australia, the Minister:

(a)    noted (at [19]) that Mr Hay had resided in Australia for some 46 years, having arrived as a child of 12 years, and held the view that the Australian community may afford a higher tolerance of criminal conduct given Mr Hay had lived in Australia for most of his life and from a reasonably young age;

(b)    noted (at [20]-[21]) that Mr Hay's entire family lives in Australia and took into account his submission that his removal from Australia would have a great impact on his family;

(c)    considered (at [26]) the effect of non-revocation upon Mr Hay's immediate family and partner in Australia and accepted that those persons would experience emotional and practical hardship, in particular his mother, Mrs Colsel,l and his partner, Ms Sayers; and

(d)    found (at [26]) that Mr Hay had been making a positive contribution for over 40 years to the community and took this into account.

13    In considering Mr Hay’s position, if removed from Australia to the United Kingdom, the Minister:

(a)    noted (at [28]) Mr Hay's submission that he had no relatives in Scotland, was not familiar with Scottish culture and would be 'completely lost';

(b)    noted (at [30]) that Mr Hay suffers from diabetes, anxiety, depression, asthma, liver disease and spinal problems and that the author of a psychological assessment, Mr Patrick Newton, considered Mr Hay to be some risk of developing more serious depressive symptoms if he was to be returned to Scotland without appropriate supports; and

(c)    took into account (at [35]) that Mr Hay will have access to similar levels of any available health or other services that are generally available to other British citizens in the same positon as Mr Hay, but acknowledged that Mr Hay is likely to face significant difficulties in re-establishing in Scotland by reason of his length of residence in Australia, his age, physical and mental medical conditions, lack of familial support in Scotland and separation from his family and partner in Australia.

14    In considering the protection of the Australian community, the Minister:

(a)    concluded (at [47]) that Mr Hay had engaged in sexual offending and considered crimes relating to sexual acts with minor children as very serious;

(b)    accepted (at [63]) that Mr Hay was somewhat remorseful for his offending and wished to avoid further offending in the future and took into account the rehabilitative programs Mr Hay had completed and the familial support he had available to him in Australia;

(c)    took into account (at [63]) Mr Hay's continued problems with alcohol and the risk this posed to the increased likelihood of him reoffending in the future and found the possibility that he may re-offend in the future could not be dismissed; and

(d)    found (at [64]) that there was an ongoing likelihood that Mr Hay would reoffend in the future and considered that should Mr Hay reoffend in a similar matter, it could result in physical and psychological harm to members of the Australian community.

15    The Minister concluded (at [72]) that Mr Hay represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed other considerations, including his lengthy residence and bonds, employment, volunteer/charity work and familial ties to Australia, and the hardship Mr Hay, his family and social networks would endure in the event the original decision was not revoked.

16    The Minister was not satisfied, for the purposes of s 501CA(4)(b)(ii) of the Act, that there was another reason why the original decision to mandatorily cancel Mr Hay's visa should be revoked. Accordingly, the Minister decided not to revoke the decision to cancel Mr Hay's visa (at [73]).

17    I have listed the matters considered by the Minister at some length because the main thread of Mr Hay’s oral argument was that the Minister had failed to consider various matters. In my assessment, the Minister’s consideration was comprehensive. In substance, Mr Hay did not agree with the conclusion at which the Minister arrived.

APPLICATION FOR REVIEW

18    As detailed above, in his amended originating application filed on 13 October 2017, Mr Hay seeks judicial review of the Minister's decision on the following grounds:

1.    [The Minister's] decision was affected by jurisdictional error in that he failed to take into account relevant considerations.

Particulars

(a)    [the Minister] failed to consider the length of time that [Mr Hay] spent in Australia without conviction.

(b)    [the Minister] failed to consider the impact that time spent in prison and immigration detention would have on the [Mr Hay’s] risk of reoffending.

(c)    [the Minister] failed to consider that [Mr Hay’s] plea of "not guilty" was consistent with a denial of the offence.

2.    [The Minister's] decision was constitutionally invalid.

Particulars

(a)    on 13 July 2017 [the Minister] made a decision under section 501(3A) of the [Act].

(b)    Section 501(3A) of the [Act] is invalid because it purports to confer judicial power of the Commonwealth on [the Minister], contrary to the Commonwealth of Australia Constitution Act.

GROUND 1 – FAILURE TO TAKE ACCOUNT OF RELEVANT CONSIDERATIONS

19    A failure to take account of a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he or she is bound to take into account in making that decision: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

20    Many statutes are properly construed as allowing their decision-makers to consider all sorts of relevant things (‘permissive considerations’) but as requiring them (in the sense that breach that will result in invalidity) to consider very few things (‘mandatory considerations’): Aronson, Groves, Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, Thomson Reuters, 2017) (at [5.30]).

Ground 1 – Particular (a)

21    Particular (a) of ground 1 alleges that the Minister failed to consider the length of time that Mr Hay spent in Australia without conviction. In fact, the Minister noted (at [19]) of his Statement of Reasons that Mr Hay had resided in Australia for some 46 years and referred (at [6], [39] and [46]) to his criminal convictions, all of which were in 2015. Furthermore, the Minister expressly acknowledged (at [24]-[25]), and took account of, the contributions that Mr Hay had made to the Australia community for over 40 years. An acknowledgment of a contribution made to the community implicitly subsumes within it the fact of non-offending during that time.

22    In any event, having regard to the subject-matter, scope and purpose of the applicable provision, the Minister was not bound to take the matter into account: see Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 (at 522-523), where Kiefel and Bennett JJ cite Mason J’s judgment in Peko-Wallsend (at 39-40).

23    Pursuant to s 501CA(4)(ii), the Minister, when determining whether there was another reason why the visa cancellation should be revoked, considered (at [36]-[37]) the issue of the protection of the Australian community. In so doing he properly considered the likelihood of recidivism. In so doing he was not obliged to find that, because of Mr Hay's lengthy residence in Australia without conviction, he posed a low risk of reoffending.

24    The length of time prior to the commission of a recent offence does not logically bear upon the likelihood of recidivism. The length of time prior to the commission of a recent offence is, at its highest, a permissive consideration that the Minister could take into account, but not a mandatory one that he must take into account. There is no basis in the statutory provision to suggest otherwise. In these circumstances one would expect to see some indication in the applicable statutory provision that it was a mandatory consideration.

Ground 1 - Particular (b)

25    In particular (b) of ground 1, Mr Hay contends that the Minister failed to consider the impact that time spent in prison and immigration detention would have on Mr Hay's risk of reoffending.

26    The Minister expressly acknowledged (at [13]) Mr Hay's legal representative's submission that the Australian criminal justice system is an adequate means of punishment and rehabilitation for people who commit crimes in Australia. However, the Minister was not obliged to conclude that Mr Hay's incarceration would have a deterrent effect, or otherwise impact upon Mr Hay's risk of reoffending. Having regard to the material considered by the Minister, including various psychological assessments, it was open to the Minister, for the reasons that he gave, to find (at [64]) that there was an ongoing likelihood that Mr Hay will reoffend in the future.

27    In any event, this consideration was a permissive one that the Minister could take into account if he chose. There is nothing, in the text, subject matter, scope and purpose of s 501CA(4)(ii) that suggests that the impact that time incarcerated would have on Mr Hay's risk of reoffending is itself a mandatory consideration. It may be that the broader question of the likelihood of recidivism is relevant to the Minister's decision. However, the discrete issue of consideration of the time spent in detention is not, upon a proper construction of s 501CA(4)(ii), a mandatory consideration that the Minister must take into account.

Ground 1 - Particular (c)

28    Particular (c) alleges that the Minister failed to consider that Mr Hay's plea of 'not guilty' was consistent with a denial of the offence. Mr Hay was convicted after trial of the offence of sexual penetration of a child under 16 years, following which he pleaded 'guilty' to two further charges of indecent act with a child under 16. Mr Hay subsequently denied culpability for the offences.

29    There is nothing to suggest that the Minister was not aware of the background to Mr Hay's convictions and his denials of the offending. The Minister expressly noted (at [50] and [56]), Mr Hay's subsequent denials of offending and took this into account in assessing the risk of Mr Hay reoffending.

30    This particular to the ground of review seeks, in effect, to review the merits of the Minister's decision and does not provide any basis for a finding of jurisdictional error.

31    In any event, the fact of Mr Hay's denial of the offence and plea of not guilty were permissive considerations that the Minister could take into account if he chose. There is nothing, in the text, subject-matter, scope and purpose of s 501CA(4)(ii) that suggests that Mr Hay’s denial was a mandatory consideration that the Minister must take into account.

GROUND 2 – CONSTITUTIONAL INVALIDITY

32    Ground 2 contends that the Minister's decision was constitutionally invalid. Although this raises a constitutional issue, Mr Hay has not filed and served notices pursuant to s 78B of the Judiciary Act 1903 (Cth).

33    In particular (a) in support of this ground, Mr Hay states that on 13 July 2017 the Minister made a decision under s 501(3A) of the Act. This is incorrect. On 13 July 2017, the Minister made a decision under s 501CA of the Act not to revoke the mandatory cancellation of Mr Hay's visa. The mandatory cancellation of Mr Hay's visa under s 501(3A) of the Act took place on 5 July 2016.

34    It is not clear whether Mr Hay now seeks to review the mandatory cancellation decision made on 5 July 2016. Mr Hay may be seeking to review only the non-revocation decision made on 13 July 2017 on the further ground that the Minister's decision was invalid because s 501(3A) of the Act on which it depended was itself invalid.

35    To the extent that Mr Hay now seeks to review the mandatory cancellation decision made on 5 July 2016:

(a)    Mr Hay has not applied for an extension of time under s 477A of the Act and has not filed any affidavit as required by rule 31.23 of the Federal Court Rules 2011 (Cth); and

(b)    this Court does not have jurisdiction under s 476A of the Act to review the mandatory cancellation decision.

36    This Court would have jurisdiction to review the mandatory cancellation decision under s 476A(1)(a) if Mr Hay commenced proceedings in the Federal Circuit Court of Australia, an extension of time was granted by the Federal Circuit Court and those proceedings were then transferred to this Court pursuant to s 39(1) of the Federal Circuit Court of Australia Act 1999 (Cth).

37    Delivery of this judgment has awaited the outcome of proceedings in the High Court of Australia which challenged the validity of s 501(3A) of the Act on the grounds that it purported to confer judicial power on the Minister, contrary to Ch III of the Constitution. Those proceedings were heard by the High Court on 14 November 2017: see Falzon v Minister for Immigration and Border Protection [2018] HCA 2.

38    As with ground 2 of this application, Mr Falzon's application asserted that s 501(3A) of the Act is invalid because it purports to confer the judicial power of the Commonwealth on the Minister, in a manner contrary to Ch III of the Constitution. That argument has now been rejected in the High Court and is unavailable to Mr Hay..

CONCLUSION

39    It follows that the application must be dismissed with costs.

Associate:

Dated:    21 February 2018