Andary v Minister for Immigration & Multicultural Affairs

THE COURT 1 This is an appeal from a decision of a single judge of this Court, Kiefel J. On 6 November 2002, her Honour dismissed an application by George Anthony Andary seeking review of a decision of the Minister, on 30 May 2002 under s 501(2) of the Migration Act 1958 (Cth) ('the Act'), to cancel the appellant's visa. 2 The appellant was born in Lebanon on 10 February 1963. In 1964 his father came to Australia. In 1967 the appellant, his brothers and sisters came to Australia with their mother who had a migrant visa, entitling her to an indefinite entry permit on arrival in Australia. He has remained in Australia ever since. He has not returned to Lebanon and does not speak Arabic fluently. All other members of his family are now citizens of Australia. The appellant's father was granted Australian citizenship in 1969, but the appellant was not included as a child on his certificate. The appellant's mother applied for and was granted citizenship in 1985. He has an Australian de facto wife, an Australian stepson and two natural children who are Australian. His wife was expecting a fourth child at the time of the Minister's cancellation of the appellant's visa on 30 May 2002. He has never held Australian citizenship. 3 The appellant has a 'substantial criminal record', as defined by s 501(7) of the Act. Section 501(6)(a) provides that a person does not pass the 'character test' if they have a substantial criminal record. Section 501(2) provides that the Minister may cancel a visa if the Minister reasonably suspects that the holder does not pass the 'character test' and the person does not satisfy the Minister to the contrary. The decision by the Minister to cancel the appellant's visa on 30 May 2002 was considered personally by him. 4 On 13 June 2000 the appellant was sentenced in the District Court in Brisbane to imprisonment for twelve months for entering or being in premises and committing an indictable offence. On 30 June 2000 he was sentenced to eighteen months imprisonment in respect of a breach of a sentence imposed on 30 September 1997 and suspended. The September 1997 offence was for supplying a dangerous drug. It is not in dispute that the appellant is deemed to have a substantial criminal record, that he does not pass the 'character test' and that he was unable to satisfy the Minister that he passes the 'character test'. 5 The proceedings at first instance and on this appeal concern the lawfulness of the exercise of the discretion by the Minister to cancel the appellant's visa. The only ground argued on the appeal was that: '... Her Honour erred in failing to find that the decision of the Minister was so unreasonable that no reasonable decision maker could have reached that decision.' This ground asserts the ground of review often described as 'Wednesbury unreasonableness'. See Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 in which Lord Greene MR said at pp 233 - 234: 'The court is entitled to investigate the action of the … authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the … authority, it may be still possible to say that, although the … authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the … authority, but as a judicial authority which is concerned, and concerned only, to see whether the … authority have contravened the law by acting in excess of the powers which Parliament has confided in them.' 6 Before amendment of the Act in October 2001, s 476(2)(b) excluded Wednesbury unreasonableness as a ground of review. Subsequent to the amendments, that exclusion was deleted from the Act. The decision of the Minister pursuant to s 501(2) is a 'privative clause' decision. As a consequence the principles set out in The King v Hickman & Ors; Ex parte Fox and Anor (1945) 70 CLR 598 at 615-616 must be applied to determine the extent, if any, to which the decision of the Minister in this case may be reviewed; see Plaintiff S157/2002 v Commonwealth (2003) 77 ALJR 454. A decision may be subject to challenge pursuant to the Hickman principles if: (i) it is not a bona fide attempt to exercise the relevant power; (ii) it does not relate to the subject matter of the legislation conferring the power; or (iii) it is not reasonably capable of reference to the power. 7 The appellant contends that manifest unreasonableness is a ground of review, despite the privative clause. The submission is that where a decision is so unreasonable that no reasonable decision maker, acting within jurisdiction and according to law, would have come to such a conclusion, that decision cannot be characterised as a bona fide attempt to exercise the power. It was further submitted that such a decision offended against the third Hickman principle in that it was not reasonably capable of reference to the power granted by the Act. 8 It is apparent from the reasons of the primary judge that her Honour was very much alive to the arguably harsh effect of the Minister's decision. Her Honour said: 'It may be expected that strong views might be held about whether the circumstances pertaining to the applicant require the cancellation of his visa and deportation. A decision to do so may be seen as very harsh, given that he has lived all his life in Australia, has a young family here and no family in Lebanon. To say that the decision is unreasonable on these accounts however, would be to say that the reasoning is wrong. It was pointed out in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 626 that the word "unreasonable" is often used to declare, emphatically, that the decision was wrong. It does not follow that there will be a legal consequence. This is such a case. The complaint made of the Minister's decision is, in reality, that he did not give enough weight to the factors referred to above and gave too much weight to the applicant's criminal history and the nature of the convictions, the majority of which involved drugs. As Mason J observed in Peko-Wallsend [(1986) 162 CLR 24] (at 42) it needs to be borne in mind that a Minister takes into account broader policy considerations. The Courts will not readily find reviewable error as to what the public interest requires. The applicant cannot establish that the decision was unreasonable in the legal sense.' 9 The test of Wednesbury unreasonableness has been variously stated. Lord Diplock in Bromley London Borough Council v Greater London Council & Anor [1983] 1 AC 768 said at 821 that the test was whether the decision: '… looked at objectively, [was] so devoid of any plausible justification that no reasonable body of persons could have reached [it].' In Council of Civil Service Unions & Ors v Minister for the Civil Service [1985] AC 374, his Lordship also said at 410 that the decision must be '… so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it'. 10 There is, it is respectfully submitted, a great deal of wisdom and practicality in the observations of Lord Cooke of Thorndon concerning the accurate formulation of the test of Wednesbury unreasonableness. In Regina v Chief Constable of Sussex, Ex parte International Trader's Ferry Ltd (1998) 3 WLR 1260 his Lordship said at pp1288 -1289: 'It seems to me unfortunate that Wednesbury and some Wednesbury phrases have become established incantations in the courts of the United Kingdom and beyond. Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223, an apparently briefly-considered case, might well not be decided the same way today; and the judgment of Lord Greene M.R. twice uses (at pp.230 and 234) the tautologous formula "so unreasonable that no reasonable authority could ever have come to it." Yet judges are entirely accustomed to respecting the proper scope of administrative discretions. In my respectful opinion they do not need to be warned off the course by admonitory circumlocutions. When, in Secretary of State for Education and Science v. Tameside Metropolitan Borough Council [1997] A.C. 1014, the precise meaning of "unreasonably" in an administrative context was crucial to the decision, the five speeches in the House of Lords, the three judgments in the Court of Appeal and the two judgments in the Divisional Court all succeeded in avoiding needless complexity. The simple test used throughout was whether the decision in question was one which a reasonable authority could reach. The converse was described by Lord Diplock, at p. 1064, as "conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt." These unexaggerated criteria give the administrator ample and rightful rein, consistently with the constitutional separation of powers.' 11 In argument, counsel for the appellant sought to rely upon the so-called 'proportionality' approach to the decision. In Radio Limerick One Ltd v Independent Radio and Television Commission [1997] IESC 3, Keane J (now Chief Justice of Ireland) observed: 'In England, an approach based on proportionality has been adopted by the courts in a number of cases: thus, in R v Barnsley MBC Ex Parte Hook, [1976] 1 WLR 1052, a local authority's suspension of a stallholder's licence on the ground that he had been guilty of misconduct when he urinated in the street and used offensive language was set aside in the Court of Appeal on the ground inter alia that the punishment was out of proportion to the offence. Other instances are cited in an interesting article to which we were referred. "Proportionality: Neither Novel nor Dangerous" by Professor Jeffrey Jowell and Lord Lester of Herne Hill (New Directions in Judicial Review, [1988] Ed Jowell and Oliver pp 51-72). The learned authors argue persuasively that the recognition of proportionality as a doctrine in administrative law would not permit intervention in the merits of the decisions of public officials to an extent greater than the Wednesbury test already allows. They urge, on the contrary, that its adoption, where appropriate, would be of assistance in eliminating the somewhat vaguer standards which would otherwise prevail in this area of the law. Whatever view may be taken as to the desirability of that approach, it can be said with confidence that, in some cases at least, the disproportion between the gravity or otherwise of a breach of a condition attached to a statutory privilege and the permanent withdrawal of the privilege could be so gross as to render the revocation unreasonable within the Wednesbury … formulation.' 12 It seems to be an open question in Australia whether such a test can have application in determining whether a decision is unreasonable in the Wednesbury sense. See Bruce v Cole & Ors (1998) 45 NSWLR 163 at 185 (per Spigelman CJ). The approach is not unlike the traditional approach to the review of the exercise of a judicial discretion. In House v The King (1936) 55 CLR 499, an appeal against sentence imposed under the provisions of the Bankruptcy Act 1924-1933 (Cth), Starke J said at p 503: '… the sentence imposed upon an accused person for an offence is a matter peculiarly within the province of the judge who hears the charge: he has a discretion to exercise which is very wide, but it must be exercised judicially, according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion. In the present case, the appellant was guilty of a dishonest act, and I am quite unable to discover any reason whatever for interfering with the discretion exercised by the learned judge.' 13 Dixon J (as he then was), Evatt and McTiernan JJ, in a joint judgment reached the same conclusion. Their Honours said at pp 504-505: '… sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.' 14 Both approaches look to the reasonableness of the outcome as possible evidence of a miscarriage of the decision-making process. Of course, we are presently seeking to apply the much more limited approach prescribed in Hickman. 15 In his reasons for the decision, delivered in answer to a request for reasons made on 18 February 2003, the Minister said: 'While not bound by my own General Direction number 21 - "Direction Under s 499 Visa Refusal and Cancellation Under section 501 of the Migration Act" … I proceeded in accordance with this Direction. I consider that my Direction properly indicates how the powers and functions of the kind here should be exercised. Accordingly, I gave primary consideration to the protection of the Australian community, the expectations of the Australian community and the best interests of the children. I then went on to consider other considerations in relation to Mr Andary.' The Minister '... found Mr Andary's crime of "Supply of Dangerous Drugs" to be conduct of the most serious nature' and '... gave this consideration great weight.' The Minister concluded '... there was some risk that Mr Andary would re-offend.' The Minister indicated 'However I gave this consideration moderate weight.' 16 It is in the Minister's treatment of the 'Expectations of the Australian community' that we find cause for disquiet. Under this heading the Minister said: 'I also gave primary consideration to the expectations of the Australian community. In accordance with the Government's view that is expressed in my Direction, I considered that the Australian community expects non-citizens to obey Australian laws while in Australia. I also accepted, however, that the Australian community would have some compassion for Mr Andary's situation. Mr Andary entered Australia at the age of 4 years and had resided in Australia since that time. I also noted that Mr Andary's immediate and extended family is resident in Australia. However, in view of Mr Andary's pattern of offending and the seriousness of the offences, I have no doubt that the Australian community would expect Mr Andary's visa to be cancelled and for him to be removed from Australia.' 17 Concerning the children, the Minister said: 'When making my decision to cancel Mr Andary's visa I also gave consideration to the fact that Mr Andary's children are all Australian citizens, the impact of Mr Andary's prior conduct on the children, and any possible hardships that may be faced by the children if they were to live with Mr Andary in Lebanon. I found that the cancellation of Mr Andary's visa and his removal from Australia may have a detrimental effect on his children. I gave this consideration significant weight.' The Minister also said: 'I found that cancelling Mr Andary's visa would cause him and his family considerable hardship. I gave this consideration considerable weight.' The Minister expressed his conclusion as follows: 'In deciding to exercise my discretion to cancel Mr Andary's visa, I took into account that there would be hardship to Mr Andary, his wife, children and immediate and extended family. I considered that it would not be in the best interests of the children for Mr Andary to be removed from Australia. In reaching my decision, however, I concluded that the seriousness and repetitive nature of Mr Andary's crimes, the fact that he was previously warned by the Supreme Court of Queensland regarding his conduct, and my responsibility to protect the Australian community outweighed all other considerations referred to above. In the circumstances I decided to exercise my discretion to cancel the visa under s501(2).' 18 We are inclined to think that the Australian community might take a rather more lenient view of the appellant's position if it were told that the appellant has been in Australia since the age of four, has no connection with Lebanon and that his close family is here. However the matter is not for us to determine. 19 The decision is largely based upon the Minister's view of the seriousness of the appellant's criminal record and his perception of the expectations of the Australian people. The exposure of these grounds for the decision makes it very difficult to apply the concept of Wednesbury unreasonableness to the case, with or without the assistance of the notion of proportionality. Views of the seriousness of a particular criminal record will vary greatly from person to person, as will opinions as to the expectations of the Australian community. In this case, the question is whether any of the bases for challenge identified in Hickman has been established. Although the decision may be harsh, we are unpersuaded that any such basis can be demonstrated. 20 This conclusion makes it unnecessary for us to consider the quite important question of whether a decision which is unreasonable in the Wednesbury sense involves jurisdictional error. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, Gleeson CJ and McHugh J said at [52]: 'The proposition that the Tribunal's decision manifested "Wednesbury unreasonableness" has not been sustained. Even if it had been sustained, Hill J was right to conclude that it did not provide a ground upon which the Federal Court could set aside the Tribunal's decision.' 21 Gaudron and Kirby JJ said at [100]: 'We each adhere to what we said in Abebe with respect to relief under s 75(v) in the case of a decision that is unreasonable, in the sense that no reasonable person could reach that decision (Abebe v The Commonwealth (1999) 197 CLR 510 at 554, per Gaudron J; at 583-584, per Kirby J).' 22 Gaudron J in Abebe v The Commonwealth (1999) 197 CLR 510 had said at [116]: 'As with the rules of procedural fairness, it is difficult to see why, if a statute which confers a decision-making power is silent on the topic of reasonableness, that statute should not be construed so that it is an essential condition of the exercise of that power that it be exercised reasonably, at least in the sense that it not be exercised in a way that no reasonable person could exercise it. However, as already indicated, that is not a matter that need now be decided.' 23 Kirby J had, at [208]-[210] in Abede, referred to one of the grounds which Ms Abebe pressed, namely that the Tribunal's decision was manifestly unreasonable in that it was so unreasonable that no donee of the relevant statutory power, exercising such power in accordance with law, could properly have made that decision. His Honour said that: 'By the Act, [this head] of challenge to the decision of the Tribunal [is] excluded from the jurisdiction of the Federal Court (the Act, s 476(2), (3)(e)). However, if included within the constitutional jurisdiction of this Court, they cannot be removed by legislation and no attempt has been made to do so. Given the purposes of the constitutional writs, I accept that their availability is not today to be confined to the narrower categories which were doubtless within the "intentions" of the framers when the Constitution was originally written. In this, as in other respects, the meaning of the constitutional text marches in step with developing understandings of the law of judicial review, stimulated by important decisions of the courts and (in a general way at least) by statutory developments affecting the legal culture within which the Constitution operates.' 24 In Eshetu (supra), Gummow J said, at [125]-[127]: ' "Wednesbury unreasonableness" may have been picked up as a statutory ground of review of administrative decisions by s 5(1)(e) and (2)(g) and (j) of the AD(JR) Act. No question under the AD(JR) Act arises in this proceeding. Statutory review apart, "Wednesbury unreasonableness" may overlap with other more clearly developed grounds for judicial review. For example, in Minister for Immigration and Ethnic Affairs v Wu Shan Liang ((1996) 185 CLR 259 at 273), it was held, with respect to the Act in an earlier form, that the determination of refugee status which was at issue in Chan v Minister for Immigration and Ethnic Affairs ((1989) 169 CLR 379) was best understood as flawed by an error of law in the application of the test of refugee status. Again, in Australian Broadcasting Tribunal v Bond ((1990) 170 CLR 321 at 367), Deane J treated "Wednesbury principles" as being "encompassed by the obligation to act judicially in cases where that obligation exists". Finally, it may be that the basis of "Wednesbury unreasonableness" is found in the proposition adopted by Brennan J in Kruger v The Commonwealth ((1997) 190 CLR 1 at 36; cf the statement of the obligation to afford procedural fairness by Mason J in Kioa v West (1985) 159 CLR 550 at 584-585) that "when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised". The result, as identified by the late Professor de Smith (de Smith's Judicial Review of Administrative Action, 4th ed (1980), p 346), is that "an authority failing to comply with this obligation acts unlawfully or ultra vires". Further, the decision of the authority in question may be tantamount to a refusal to exercise its discretion (See Williams v Giddy [1911] AC 381 at 385-386, an appeal from the Supreme Court of New South Wales in which the judgment of the Privy Council was delivered by Lord Macnaghten). If the matter be looked at in that way, then there appears more readily a footing for judicial review by way of prohibition or mandamus or injunctive relief under s 75(v) of the Constitution in an appropriate case.' 25 Hayne J said at [159]: 'I prefer to express no view on whether what is called the Wednesbury unreasonableness ground (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) is a ground for granting any of the remedies referred to in s 75(v) or on what is properly encompassed by that ground. I therefore express no view on whether it is a ground that concerns, or concerns only, the exercise of discretion rather than the finding of facts. The questions debated in the course of argument about what was said by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd ((1986) 162 CLR 24 at 42) need not be answered in this case. Even if Wednesbury unreasonableness is given as wide a reach as the applicant contended, and even if it is a ground that is open to an applicant for relief under s 75(v), the reasons given by Gleeson CJ and McHugh J show that the decision of the Refugee Review Tribunal was a decision that was open to it.' Callinan J at [183] referred to the respondent's application for prerogative relief against the Tribunal made in pursuance of s 75(v) of the Constitution and said that: 'The argument [for the respondent] assumed that unreasonableness in the sense discussed in Associated Provincial Picture Houses Ltd v Wednesbury Corporation ([1948] 1 KB 223) was a ground upon which the respondent could rely for a grant of prerogative relief pursuant to s 75(v) of the Constitution.' 26 Callinan J also referred to observations of Mason J in Minister for Aboriginal Affairs & Anor v Peko Wallsend Ltd & Ors (1986) 162 CLR 24 at 41, and noted the observation of Deane J in Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321 at 367: 'In so doing, I have treated what are sometimes referred to as "Wednesbury principles" (see Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation ([1948] 1 K.B. 223, at pp. 229-233)) as encompassed by the obligation to act judicially in cases where that obligation exists (but cf., for a contrary approach, Council of Civil Service Unions v. Minister for the Civil Service ([1985] A.C. 374, at pp. 410-411, 414-415)). If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably. It requires that regard be paid to material considerations and that immaterial or irrelevant considerations be ignored. It excludes the right to act on preconceived prejudice or suspicion. Arguably, it requires a minimum degree of "proportionality" (cf. the C.C.S.U. Case ([1985] A.C., at p. 410)).' 27 Callinan J concluded: 'It is unnecessary to consider whether his Honour's arguably broader statement of the principle of "unreasonableness" has attracted the support of other members of this Court because in my view the Tribunal's decision cannot be characterised as unreasonable in any of the senses in which Deane J would define or even arguably define that term.' 28 As we have said, even if Wednesbury unreasonableness constitutes jurisdictional error, we are not satisfied that such unreasonableness has been demonstrated in this case. No error attends the conclusion of the primary judge to that effect. The appeal must be dismissed with costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Cooper and Dowsett