FEDERAL COURT OF AUSTRALIA

Abdel-Hady v Minister for Immigration and Border Protection [2018] FCA 535

ORDERS

THE COURT ORDERS THAT:

1.    The originating application filed on 26 September 2017 be dismissed.

2.    The applicant is to 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

WIGNEY J:

1    Mr Safwat Abdel-Hady, who is the applicant in this proceeding, is a citizen of Austria. He has, however, resided in Australia for many years pursuant to a visa issued under the Migration Act 1958 (Cth). That all changed in March 2017 when the respondent, the Minister for Immigration and Border Protection, decided to cancel Mr Abdel-Hady’s visa on character grounds pursuant to s 501(2) of the Act. Mr Abdel-Hady applied to this Court for an order, the effect of which would be to set aside the decision to cancel his visa.

2    The central issue raised by Mr Abdel-Hady’s application is whether the Minister treated the best interests of Mr Abdel-Hady’s child as a primary consideration in the exercise of his discretion to cancel Mr Abdel-Hady’s visa. Mr Abdel-Hady contended that the Minister’s reasons for deciding to cancel his visa reveal that the Minister did not treat the best interests of his child as a primary consideration and that, as a result, the Minister denied him procedural fairness or natural justice and made a legally unreasonable decision.

3    For the reasons that follow, Mr Abdel-Hady’s application must be dismissed. The Minister did treat the best interests of Mr Abdel-Hady’s child as a primary consideration and did not deny Mr Abdel-Hady procedural fairness. Nor was the decision legally unreasonable.

background

4    The relevant facts were uncontroversial. The applicant, a citizen of Austria, first arrived in Australia in 1997 on a Class UD subclass 976 visa. It appears that he departed from and returned to Australia several times over the following years.

5    On 7 April 2009, Mr Abdel-Hady was convicted in the District Court of New South Wales, following a trial by jury, of three indictable offences. The first two offences were that, contrary to s 38 of the Crimes Act 1900 (NSW), he unlawfully caused a person to take a stupefying drug with the intention of enabling him to commit an indictable offence, namely, indecent assault. The third offence was that, contrary to s 61L of the Crimes Act, he assaulted a woman and, at the time of the assault, committed an act of indecency on her. He was sentenced to imprisonment with an effective term of six years and eight months, with a non-parole period of five years.

6    Mr Abdel-Hady successfully appealed his convictions. On 28 October 2011, the New South Wales Court of Criminal Appeal quashed the convictions and ordered a new trial. It appears that following his successful appeal, Mr Abdel-Hady was granted bail. By that time, however he had spent two years, eight months and 17 days in custody.

7    Following his release from custody, Mr Abdel-Hady married an Australian citizen, Ms M, on 24 December 2011. On 14 June 2012, he applied for a Class UK subclass 820 Partner (Temporary) visa (Visa) on the basis of his relationship with Ms M. On 16 August 2012, when he was still awaiting his retrial, Ms M gave birth to her and Mr Abdel-Hady’s daughter, R.

8    As events transpired, Mr Abdel-Hady was not retried on the original charges. Instead, on 2 November 2012, the Crown accepted his pleas of guilty in the District Court to two counts of the lesser offence of causing another person to take a poison which endangered life, or inflicted grievous bodily harm, with the intention of injuring the other person, contrary to s 39 of the Crimes Act. It was conceded by the Crown that the time already served by Mr Abdel-Hady was an appropriate sentence. He was sentenced accordingly, the result being that he was released shortly thereafter.

9    On 18 December 2012, Mr Abdel-Hady was notified that the Minister intended to consider refusing his application for the Visa on character grounds pursuant to s 501(1) of the Act. Mr Abdel-Hady was invited to make, and subsequently did make, submissions to the Minister in response to that notification. On 14 February 2013, a delegate of the Minister advised Mr Abdel-Hady that it had been decided not to exercise the discretion to refuse to grant the Visa to him on character grounds. However, that letter cautioned Mr Abdel-Hady as follows:

… if you engage in any further conduct that might bring you within the scope of section 501, cancellation of any visa that you hold and/or refusal of any future visa applications may be considered and if so, the fact of this warning may weigh heavily against you.

10    Mr Abdel-Hady was granted the Visa on 15 March 2013. Shortly thereafter, however, his marriage to Ms M broke down. The couple separated on 27 July 2013.

11    On 4 December 2014, Mr Abdel-Hady was convicted by a magistrate in the Local Court of New South Wales of a number of offences involving violence or threats of violence. The magistrate imposed sentences in respect of those offences on 17 February 2015. The offences, and the sentences imposed in relation to them, were as follows:

(a)    An offence of assault occasioning actual bodily harm committed on 8 November 2012. In respect of this offence, Mr Abdel-Hady was sentenced to seven months’ imprisonment, suspended on entering a good behaviour bond for seven months pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act).

(b)    An offence of assault occasioning actual bodily harm committed on 29 April 2013. In respect of this offence, Mr Abdel-Hady was sentenced to nine months’ imprisonment, suspended on entering a good behaviour bond for nine months pursuant to s 12 of the Sentencing Act.

(c)    An offence of stalk or intimidate with intention to cause fear or harm committed on 29 April 2013. In respect of this offence, Mr Abdel-Hady was required to enter a bond to be of good behaviour pursuant to s 9 of the Sentencing Act for two years and fined $1,000.

(d)    An offence of common assault committed on 23 July 2013. In respect of this offence, Mr Abdel-Hady was sentenced to seven months’ imprisonment, suspended on entering a good behaviour bond for seven months pursuant to s 12 of the Sentencing Act.

(e)    An offence of stalk or intimidate with intention to cause fear or harm committed on 23 July 2013. In respect of this offence, Mr Abdel-Hady was required to enter a good behaviour bond pursuant to s 9 of the Sentencing Act for 2 years and fined $1,000.

12    The victim of each of the offences was Ms M. It is unnecessary to detail the facts of the offences given the narrow nature of the issues raised in this application. The magistrate also made an apprehended violence order that Mr Abdel-Hady not assault, molest, harass, threaten, intimidate, stalk, interfere with, or approach, by any means, “the person in need of protection or anyone she [had] a domestic relationship with”, other than through a legal representative, or in writing, or as permitted under the Family Law Act 1975 (Cth). The duration of the order was two years. It accordingly expired on 17 February 2017. The “person in need of protection” was obviously Ms M.

13    On 13 April 2015, a delegate of the Minister notified Mr Abdel-Hady in writing that consideration was being given to cancelling his Visa pursuant to s 501(2) of the Act.

14    Section 501(2) relevantly provides as follows:

Refusal or cancellation of visa on character grounds

…

(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.

15    The ‘character test’ is set out in s 501(6) and, relevantly, s 501(7) of the Act, as follows:

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

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

…

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

(a)    the person has been sentenced to death; or

(b)    the person has been sentenced to imprisonment for life; or

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

(d)    the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or

…

16    In the written notification, Mr Abdel-Hady was invited to comment or provide information on whether he passed the character test and, if not, whether the Minister or his delegate should exercise the discretion to cancel the Visa. Importantly, the notice stated that if the decision-maker was to be the Minister’s delegate, the delegate was required to follow “Direction 65”, a copy of which was enclosed with the notice. It was noted, however, that if the Minister was to make the decision personally, the Minister was “not required to give consideration to Direction 65, though it provide[d] a broad indication of the types of issues that he or she may take into account”.

17    Direction 65 relevantly provided, in clause 8(1), that in exercising the discretion to cancel a visa under s 501(1) of the Act, decision-makers must take into account the “primary and other considerations relevant to the individual case”. Clause 9 provided that the primary considerations include the “best interests of minor children in Australia”. Clause 9.2 provided as follows in relation to the best interests of minor children in Australia affected by the decision:

9.1    Best interests of minor children in Australia affected by the decision

(1)    Decision-makers must make a determination about whether cancellation is, or is not, in the best interests of the child.

(2)    This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to cancel the visa is expected to be made.

(3)    If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

(4)    In considering the best interests of the child, the following factors must be considered where relevant:

a)    The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

b)    The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

c)    The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

d)    The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

e)    Whether there are other persons who already fulfil a parental role in relation to the child;

f)    Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

g)    Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

h)    Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

18    On 26 August 2016, Mr Abdel-Hady’s solicitor provided a detailed response to the notice of intention to cancel the Visa. In relation to Mr Abdel-Hady’s relationship with his daughter, the submission stated:

The applicant [Mr Abdel-Hady] shows unfailing love to his daughter [R], although not having seen her since his separation from his former wife in 2013.

It is to be noted, that the applicant has been prevented to see his daughter through no choice of his own. This has left him utterly sad and distressed. Prior to his separation from his former wife, the applicant and his daughter shared a close bond, like any father and daughter. He was a present and active father to [R], and would often be responsible for minding her as he had flexible working arrangements.

19    The submission referred to the family law proceedings between Mr Abdel-Hady and his former wife concerning access to their daughter, R. The submission stated, in that context:

It is our submission that the applicant has been unable to see his daughter through no fault of his own. He is doing everything in his power to re-establish the connection between himself and his daughter, and has every intention of regaining access to her through the family law matters which are currently proceeding.

The family law proceedings are ongoing, and at this stage, a trial date for access to Mr Hady’s child is awaited and it is possible that the matter will be listed for hearing in 2017 or 2018.

To cancel Mr Hady’s visa before the family law proceedings are finalised would be unreasonable and unfair and would effectively pre-empt a final decision of the Family Court as Mr. Hady may no longer be resident in Australia. In such event Mr Hady would be forced to depart Australia and any chance of reconnecting with his daughter would be abolished. The whole basis for the complaints made to DIPB [sic] about Mr. Hady should be seen in this light.

20    In relation to the impact that cancellation of the Visa would have on Mr Abdel-Hady’s daughter, the submission stated:

We submit that this factor should be given paramount and significant weight. The cancellation of Mr Hady’s visa would be extremely detrimental to his daughter’s emotional, social end [sic] financial development and welfare.

As the law currently stands, if Mr Hady’s visa were cancelled, he would be permanently excluded from Australia. Mr Hady has at no times harmed his daughter, or shown to be a risk to the child.

[R], is only four years of age, and growing up without a father could cause her emotional and psychological trauma.

21    The submission went on to refer to extracts from a psychologist’s report concerning the deleterious effect that separation from her father would have on Mr Abdel-Hady’s daughter. It also extracted Article 9 of the Convention on the Rights of the Child. Opened for signature 20 November 1989. [1991] ATS 4 (entered into force 2 September 1990). It then stated:

We submit that the cancellation of Mr Hady’s visa would be contrary to the best interests of the child, and a potential breach of Article 9, referred to above. Mr Hady has never shown any sign of abuse or neglect to the child. To the contrary, Mr Hady has been actively doing everything in his power to regain access to his daughter.

In line with Article 9.2 of the Convention of the Rights of the Child, Mr Hady currently has family law proceedings which are ongoing. As stated, the trial date is due to be set in 2017 or 2018. It is anticipated that Mr Hady will soon have access again to his daughter, subject to completion of courses recommended. Please refer to letter enclosed from Mr Lionel Kramer.

22    The submission noted that it was the opinion of Mr Abdel-Hady’s family lawyers that Mr Abdel-Hady should soon be in a position where he had contact with his daughter.

23    On 22 August 2017, a delegate of the Minister wrote to the applicant advising him that the Minister had exercised his discretion to cancel the Visa pursuant to s 501(2) of the Act.

the minister’s decision and reasons

24    In his Reasons, signed and dated 31 March 2017, the Minister noted that Mr Abdel-Hady did not meet the character test because he had a substantial criminal record as defined in s 501(7)(c) of the Act. Mr Abdel-Hady conceded, and concedes on this application, that he did not meet the character test.

25    The Reasons then addressed the exercise of the discretion to cancel the Visa. The Reasons noted the Government’s commitment to protect the Australian community from harm as a result of criminal activity by non-citizens and, in that context, discussed at length the nature and seriousness of Mr Abdel-Hady’s criminal offending and the risk to the Australian community should Mr Abdel-Hady re-offend. It is unnecessary to repeat the detail of what is said in the Reasons concerning those matters. That part of the Minister’s reasoning was not criticised or challenged on this application.

26    As has already been noted, Mr Abdel-Hady’s challenge to the cancellation decision relates essentially to the Minister’s reasoning and findings concerning the best interests of Mr Abdel-Hady’s young daughter. While the criticism focussed on one paragraph of the Reasons – paragraph 69 – it is necessary to consider that paragraph in context. The relevant reasoning and findings are to be found in paragraphs 56 to 69 of the Reasons, which should be set out in full:

Best interests of minor children

56. In considering whether or not I should exercise my discretion to cancel Mr ABDEL-HADY’s visa, I acted in conformity with Article 3 of the United Nations Convention on the Rights of the Child, and treated the best interests of any children under 18 in Australia affected by the cancellation of Mr ABDEL-HADY’s visa as a primary consideration.

57. Mr ABDEL-HADY is the biological father of Miss [R] Hady, born 16 August 2012, aged four years. He was married to [R’s] mother, Ms [M]. They separated on 23 July 2013.

58. Mr ABDEL-HADY is currently subject to a two year Apprehended Violence Order as a result of his domestic violence related convictions in relation to Ms [M]. The Order extends to [R]. Mr ABDEL-HADY has not seen [R] since the breakdown of the marital relationship.

59. I have considered Mr ABDEL-HADY’s representation of the role he played in [R] life prior to the separation. Mr ABDEL-HADY spent much of his time caring for [R]. He changed nappies, played with [R] and gave her attention. I have noted greeting cards received from [R] to Mr ABDEL-HADY demonstrate the nature of the relationship. I accept that Mr ABDEL-HADY had an active parental role with [R] prior to the separation.

60. I have given regard to Mr ABDEL-HADY’s representation that he is seeking to regain parental access of [R] through the Family Court of Australia which he initiated in 2013 and is ongoing. I note that a five day hearing has been set down to commence on either 27 February or 6 March 2017. Further, I note Mr ABDEL-HADY has undertaken specific parenting courses and is awaiting others to commence as recommended by experts to assist in his endeavour. Mr ABDEL-HADY has also commenced therapy as recommended.

61. I have taken into account Mr ABDEL-HADY’s representation that he provides financial support and continues to send gifts and cards for [R] and that he can continue to provide financial and physical support for [R].

62. I note with concern Mr ABDEL-HADY’s representation that [R] may be at risk from her mother. I have given regard to the psychologist report from Mr Cohen where he notes concerns for an email Mr ABDEL-HADY received from Ms [M], dated 10 April 2012, some four months before the birth of [R] regarding a statement she made in reference to a virus she had contracted that could have serious health complications for the unborn child. I note that Ms [M], in her email, acknowledges her statement is horrible. Ms [M] clarifies that the pressure of possibly having an unhealthy baby is affecting her. I have given regard to information in Mr Cohen’s report that Mr ABDEL-HADY told him Ms [M] had hit him while he was holding two week old [R]. I note this allegation was raised at Mr ABDEL-HADY’s trial in the Local Court of New South Wales and the Magistrate found the allegation was not credible. I proceed on the basis of the Local Court’s findings and do not accept the comments of Mr Cohen.

63. I have considered Mr ABDEL-HADY’s representation that Mr ABDEL-HADY’s primary concern is and always will be [R], he has never shown any sign of abuse or neglect to [R] and there is no evidence that [R] has suffered trauma from his contact.

64. I have also taken into account judgment remarks of 4 December 2014 in the Local Court of New South Wales where the Magistrate noted the offending by Mr ABDEL-HADY on 23 July 2013 had occurred in the presence of [R] and that she could be heard crying on a tape recording of the incident. Mr ABDEL-HADY’s behaviour did not change after he was told by Ms [M] in the recording that [R] was scared. The Magistrate further remarked that [R’s] presence aggravated his offending further.

65. I have considered Mr ABDEL-HADY’s representation that children with involved fathers are developmentally advantaged and research indicates that children of distressed parents are at greater risk of developing mental health problems. I have given regard to the psychologist report from Mr Cohen who states that in his opinion [R] would be placed at severe risk of developing anxiety and depression if Mr ABDEL-HADY’s visa was cancelled and he was moved from Australia.

66. Further, I have considered Mr ABDEL-HADY’s representation that it would be unfair to cancel Mr ABDEL-HADY’s visa prior to the outcome of the Family Court matter as being offshore may influence the decision of the Family Court and cancellation of Mr ABDEL-HADY’s visa would be contrary to the Convention on the Rights of the Child.

67. I accept that it is generally in the best interests of children to have immediate access to both their parents as supported by the Convention on the Rights of the Child.

68. While I am concerned that the behaviour of [R’s] parents in their parenting dispute may adversely affect [R], I note that this is in the hands of the Family Court of Australia and [R’s] best interests will be identified and maintained by an Independent Children’s Lawyer.

69. I find that it is in the best interests of [R] to not cancel Mr ABDEL-HADY’s visa to allow [R] the opportunity to have a relationship with Mr ABDEL-HADY if permitted by the Family Court of Australia or should she wish to do so at any point in the future.

27    The Reasons then addressed the expectations of the Australian community and other considerations, such as Mr Abdel-Hady’s ties to Australia, the impact of the cancellation of the Visa on Mr Abdel-Hady’s business interests and the extent of the impediments that Mr Abdel-Hady would face if removed from Australia to his country of citizenship, Austria. It is again unnecessary to repeat or summarise what is said in the Reasons concerning those matters.

28    The Minister’s conclusions in respect of the exercise of his discretion were set out in paragraphs 88 to 96 of his Reasons. Having regard to the arguments put forward by Mr Abdel-Hady on this application, it is again relevant to set out those paragraphs of the Reasons in full:

88. I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act and (2) all other evidence available to me, including evidence provided by, or on behalf of Mr ABDEL-HADY.

89. In considering whether or not to cancel Mr ABDEL-HADY’s visa, I gave primary consideration to the best interests of [R] Hady and have found that her best interests would be best served by not cancelling the visa.

90. I am mindful that Australia has a low tolerance of criminal conduct by persons holding a limited stay visa, reflecting that there should be no expectation that such people remain in Australia.

91. Mr ABDEL-HADY has committed serious crimes, including that of use poison etc so as to endanger life (two counts) and assault occasioning actual bodily harm, which is of a violent nature. Mr ABDEL-HADY and non-citizens who commit such offences should not generally expect to be permitted to remain in Australia.

92. I find that the Australian community could be exposed to great harm should Mr ABDEL-HADY re-offend in a similar fashion. I could not rule out the possibility of further offending by Mr ABDEL-HADY. The Australian community should not tolerate any further risk of harm.

93. I found the above consideration outweighed the countervailing considerations in Mr ABDEL-HADY’s case, including the best interests of the child as a primary consideration and only impact on Australian business interests. I have also considered the length of time Mr ABDEL-HADY has made a positive contribution to the Australian community and or the consequences of my decision for minor children and other family members.

94. I am cognisant that where great harm could be inflicted on the Australian community even strong countervailing considerations are insufficient for me not to cancel the visa.

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

96. Having given full consideration to all of these matters, I decided to exercise my discretion to cancel Mr ABDEL-HADY’s Class UK Subclass 820 Partner (Temporary) visa under s501(2) of the Migration Act.

Grounds of review and submissions

29    Mr Abdel-Hady’s Further Amended Originating Application contained two grounds.

30    The first ground was that the Minister “failed to accord [him] natural justice”. The particulars of that failure were said to be that the Minister failed “to act in accordance with Article 3 of the Convention without informing the applicant of his intention of possibly not so doing” and that the finding in paragraph 69 of the Reasons “was not a finding of what lay in the child’s best interests at the time of the Minister’s decision”.

31    The second ground was that the decision was “affected by legal unreasonableness”. The particulars of that allegation were that the Minister’s finding at paragraph 69 of the Reasons “had no relevant application to the Minister’s discretion as to whether to cancel the applicant’s visa on 31 March 2017, and so lacked an evident and intelligible justification”.

32    While the grounds as particularised in the application are not entirely easy to follow or comprehend, it was readily apparent from Mr Abdel-Hady’s written and oral submissions that both grounds hinged almost entirely on the contention that the Minister’s finding in paragraph 69 of the Reasons does not constitute a finding about what lay in R’s best interests at the time of the decision. That was said to be because that paragraph of the Reasons did not identify what the best interests of R indicated that the Minister should decide with respect to the cancellation of her father’s Visa. Mr Abdel-Hady relied on the decisions in Vaitaiki v Minister for Immigration & Ethnic Affairs (1998) 150 ALR 608 at 630-631; Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 at [26]; Nweke v Minister for Immigration & Citizenship [2012] FCA 266; (2012) 126 ALD 501 at [12], [18]-[21] as supporting the contention that such a finding did not constitute a finding concerning the best interests of the child.

33    Mr Abdel-Hady’s submission was that the finding in paragraph 69 of the Reasons was a finding concerning what would be in R’s best interests if certain things happened in the future – if the Family Court permitted access and R wished to have a relationship with her father – not a finding about what was in R’s best interests at the time the Minister made his decision. As for paragraph 89 of the Reasons, Mr Abdel-Hady contended that what was said in that paragraph was a misstatement and not a true reflection of what the Minister had in fact found in paragraph 69. It followed, in Mr Abdel-Hady’s submission, that the Minister did not comply with the Convention in accordance with Direction 65.

34    The consequence of the Minister’s failure to make a finding concerning what the best interests of Mr Abdel-Hady’s daughter indicated he should decide with respect to the cancellation of the Visa were, in Mr Abdel-Hady’s submission, twofold.

35    First, given what Mr Abdel-Hady was told concerning the relevance of Direction 65 in the notice of intention to cancel the Visa, it was reasonable for him to expect that the Minister would make such a finding concerning the best interests of his daughter and would comply with the Convention in accordance with Direction 65. In those circumstances, it was, in Mr Abdel-Hady’s submission, unfair for the Minister not to advise him that he might not comply with the Convention. That amounted to a breach of the requirements of natural justice.

36    Second, Mr Abdel-Hady submitted that the Minister’s finding in paragraph 69 that it would be in the best interests of his daughter not to cancel the Visa, but only in the event that something happened in the future, had no logical bearing on the decision that was required to be made by the Minister under s 501(2) of the Act. It followed, in Mr Abdel-Hady’s submission, that there was no “intelligible justification” for the decision.

Did the Minister give primary consideration to the best interests of Mr Abdel-Hady’s daughter?

37    A fair reading of the Reasons clearly reveals that the Minister did give primary consideration to the best interests of Mr Abdel-Hady’s daughter. Mr Abdel-Hady’s submissions were based on a fundamental misreading or mischaracterisation of paragraph 69 of the Reasons. When paragraph 69 is read in the context of the submissions that were made on Mr Abdel-Hady’s behalf, and the discussion and findings made in paragraphs 56 to 68 of the Reasons, it is quite clear that the Minister accepted and found that it was in the best interests of Mr Abdel-Hady’s daughter not to cancel his Visa. That finding was not contingent or conditional on some future event, or qualified in any way.

38    In paragraph 56, the Minister expressly stated that he had acted in conformity with Article 3 of the Convention and treated the best interests of Mr Abdel-Hady’s daughter as a primary consideration. In paragraph 58, the Minister referred to the apprehended violence order made by the magistrate. Mr Abdel-Hady correctly submitted that the Minister was mistaken in stating that the order was still current at the time of the decision. By the time the Minister made his decision, the order had expired. That factual error, however, had no bearing at all on the Minister’s decision. Mr Abdel-Hady did not contend otherwise.

39    In paragraph 59, the Minister accepted that Mr Abdel-Hady had played an active parental role in his daughter’s life prior to separation from Ms M. Perhaps more significantly, in paragraph 60, the Minister accepted that Mr Abdel-Hady was seeking to regain parental access through the Family Court. In paragraphs 62 to 64, the Minister considered and weighed up other information and submissions that had been put forward on Mr Abdel-Hady’s behalf concerning the relationship between him, his former wife and their daughter. Importantly, in paragraph 65, the Minister indicated that he had considered the opinion expressed in a psychologist report which was to the effect that Mr Abdel-Hady’s daughter would be placed at severe risk of developing anxiety and depression if Mr Abdel-Hady’s Visa was cancelled. At paragraph 67, the Minister accepted that it was generally in the best interests of children to have immediate access to both their parents “as supported by the Convention”. In paragraph 68, the Minister expressed concern that the behaviour of Mr Abdel-Hady and his former wife in their parenting dispute may adversely affect their daughter, but noted that the daughter’s best interests would be considered in the context of the Family Court proceedings and that her interests would be “identified and maintained” by an independent lawyer appointed to represent her in those proceedings.

40    The Minister’s reasoning and findings in the paragraphs just summarised reveal a careful consideration and weighing of the information and submissions that were before the Minister in relation to the best interests of Mr Abdel-Hady’s daughter. When paragraph 69 is considered in the context of the discussion and finding in those paragraphs, it is readily apparent that the Minister was mindful that, at the time of his decision, Mr Abdel-Hady did not have access to his daughter, but that he accepted the submission that had been made on Mr Abdel-Hady’s behalf that the likely outcome of the Family Court proceedings was that Mr Abdel-Hady would be regaining access to his daughter “in the foreseeable future”. More importantly, it is quite clear that the Minister accepted that, in those circumstances, it was in Mr Abdel-Hady’s daughter’s best interests not to cancel the Visa so that she would have the opportunity to renew her contact and relationship with her father when, as expected, he regained access rights.

41    Read in that way, paragraph 69 is entirely consistent with the Minister’s emphatic, unequivocal and unqualified statement in paragraph 89 that he gave “primary consideration to the best interests of [R] Hady and have found that her best interests would be best served by not cancelling the visa”.

42    Contrary to Mr Abdel-Hady’s submission, a fair reading of paragraph 69 in the context of the Reasons as a whole does not indicate that the Minister found only that the daughter’s best interests in not having the Visa cancelled were contingent, or only arose, if the Family Court granted Mr Abdel-Hady access rights in the future. Nor is there any basis to conclude, as Mr Abdel-Hady contended, that the emphatic statement in paragraph 89 was either a misstatement or did not accurately or truthfully reflect the findings made by the Minister.

43    It follows that the premise or contention that underlay both Mr Abdel-Hady’s grounds of review is erroneous and must be rejected.

GROUND 1 – WAS THERE A DENIAL OF PROCEDURAL FAIRNESS?

44    It must follow that there is no basis to conclude that Mr Abdel-Hady was denied procedural fairness or natural justice. The very premise underlying Mr Abdel-Hady’s contention that he was denied procedural fairness – that the Minister failed to act in accordance with Article 3 of the Convention and did not make any finding concerning the best interests of his daughter – is a false premise for the reasons already given. In any event, even if the Minister’s finding was somehow equivocal or contingent as suggested by Mr Abdel-Hady, it would not necessarily follow that he was denied procedural fairness or natural justice.

45    Mr Abdel-Hady’s submissions concerning the alleged denial of procedural fairness hinged on the contention that it was reasonable for Mr Abdel-Hady to expect that the Minister would comply with the Convention and unfair of the Minister not to advise Mr Abdel-Hady that he might not. The alleged unfairness, therefore, was said to be that Mr Abdel-Hady’s legitimate expectation was disappointed. The difficulty for Mr Abdel-Hady, however, is that it is now well-recognised that the mere fact that a person’s legitimate expectations concerning the procedure that might be adopted by a decision-maker are disappointed does not mean that they have been denied procedural fairness.

46    In Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, Kiefel, Bell and Keane JJ said (at [30]):

The “legitimate expectation” of a person affected by an administrative decision does not provide a basis for determining whether procedural fairness should be accorded to that person or for determining the content of such procedural fairness. It is sufficient to say that, in the absence of a clear, contrary legislative intention, administrative decision-makers must accord procedural fairness to those affected by their decisions. Recourse to the notion of legitimate expectation is both unnecessary and unhelpful. Indeed, reference to the concept of legitimate expectation may well distract from the real question; namely, what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made.

47    Gageler and Gordon JJ said (at [60]-[61]):

Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.

That is to highlight one of the confusions that can be introduced when the concept of “legitimate expectation” is used as a basis for determining the content of procedural fairness. By focusing on the opportunity expected, or legitimately to have been expected, the concept can distract from the true inquiry into the opportunity that a reasonable administrator ought fairly to have given. The former is relevant only in so far as it bears on the latter. As Gleeson CJ put it in Lam [Re Minister for Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1]:

“[T]he creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.”

(Footnotes omitted.)

48    Here, Mr Abdel-Hady was notified that, while the delegate was required to follow Direction 65, the Minister was not bound by Direction 65 if he made the decision personally. Mr Abdel-Hady was, however, told that Direction 65 in any event provided a broad indication of the types of issues that the Minister may take into account and effectively invited him to address his submissions or representations by reference to Direction 65. And that is exactly what Mr Abdel-Hady did. Specifically, and relevantly, he made detailed and extensive submissions to the effect that the best interests of his daughter were best served by not cancelling his Visa.

49    In those circumstances, whatever the Minister may ultimately have decided concerning the best interests of Mr Abdel-Hady’s daughter, it cannot be concluded that Mr Abdel-Hady was not afforded a fair opportunity to be heard concerning that matter, or the cancellation of his Visa generally. The dashing of any expectation that Mr Abdel-Hady may have had concerning the approach that the Minister would or might take in relation to the Convention and the best interests of his daughter, accordingly, had no impact on the fairness of the procedure or the fairness of the opportunity that Mr Abdel-Hady had to make submissions in relation to those matters. He was not denied procedural fairness.

Ground 2 – was the decision legally unreasonable?

50    This question may also be answered in short terms. The premise that underlay or provided the basis for Mr Abdel-Hady’s submission that the decision was legally unreasonable has been shown to be a false premise.

51    When read fairly and in context, the finding made in paragraph 69 of the Reasons concerning the best interests of Mr Abdel-Hady’s daughter in the circumstances was not in any sense unreasonable, illogical or irrational. Nor could it be concluded that the finding manifested any error of principle in the Minister’s reasoning process.

52    More significantly, the Reasons, read as a whole, plainly revealed an evident and intelligible justification for the Minister’s decision to cancel Mr Abdel-Hady’s Visa: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76]. Mr Abdel-Hady’s submission to the contrary must be rejected.

53    While no doubt Mr Abdel-Hady strongly disagreed with the decision, and reasonable minds may differ as to what should have been the outcome of the exercise of the discretion to cancel the Visa in Mr Abdel-Hady’s case, there could be no doubt that the decision to cancel fell well within the lawful area of “decisional freedom” within which the Minister had a genuinely free discretion, or that the decision fell within the range of possible lawful outcomes of the exercise of the relevant power: Li at [66], [105]. The decision to cancel was accordingly not legally unreasonable.

Conclusion and disposition

54    Both the grounds of review advanced by Mr Abdel-Hady are unmeritorious and must be dismissed. Mr Abdel-Hady has failed to demonstrate that the Minister erred in law in deciding to cancel his Visa. His application must accordingly be dismissed with costs.

Associate:

Dated:    20 April 2018