The risk of harm to the Australian community - a mandatory consideration?
16 The Migration Act provides that the Minister may give "written directions" relating to the performance of functions and the exercise of powers conferred by the Act: s 499. Section 499(2A) provides that a "person or body must comply with a direction under subsection (1)". The Minister has given such a direction regarding the exercise of the powers conferred by s 501: Direction No 55 - Visa Refusal and Cancellation under s 501. But that Direction does not bind the Minister: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38 at [6], (2014) 220 FCR 1 at 4 per Allsop CJ and Katzmann J. See also: Brown v Minister for Immigration and Border Protection [2015] FCA 75 at [62] per Bennett J; Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 at [48], (2014) 225 FCR 424 at 437 per Mortimer J.
17 Section 501G(1)(e) of the Migration Act provides that the Minister must give reasons for a decision made under s 501(1). Although not bound to do so, the Minister's Statement of Reasons in the present case substantially follows the structure of those matters to be taken into account as set forth in Direction No 55.
18 Those reasons include a consideration of the risks to the Australian community posed by Mr Berryman's past criminal conduct.
19 Differing views have been expressed, however, as to whether the risk of harm is a mandatorily relevant consideration that must be taken into account if the discretion conferred by s 501 is to be lawfully exercised.
20 In Tanielu v Minister for Immigration and Border Protection [2014] FCA 673, (2014) 225 FCR 424 at 450, for example, Mortimer J concluded that it was. Her Honour there canvassed the authorities and relevantly concluded:
[122] None of the foregoing contradicts the well-established proposition that, although the discretion is not fettered by any express limitation, it must nevertheless be exercised by reference to considerations identified from the subject matter, scope and purpose of the statute … What is critical then is the identification of the particular relevant consideration and how the subject matter, scope and purpose of the statute might be said to require that it be taken into account …
[123] The risk of harm to the Australian community is such a matter. Without assessment of this risk being an integral aspect of the exercise of the power in s 501(2), it is difficult to see how the power would otherwise stay within constitutional limits and advance the purposes and objects of the Migration Act in general, and of the cancellation provisions in particular.
The Full Court in Moana v Minister for Immigration and Border Protection [2015] FCAFC 54 had occasion to consider this conclusion of her Honour. But again differing views were expressed. Rangiah J, with whom North J agreed, relevantly observed:
[70] Mortimer J decided that the exercise of the discretion under s 501(2) requires the risk of harm to be considered and that an examination of the likelihood of a person engaging in future conduct which may cause harm is an essential part of any assessment of the risk that the person poses to the Australian community.
[71] If the Minister is to be held to be bound to examine the likelihood of a person engaging in future conduct which may cause harm in every exercise of the discretion under s 501(2), then an implication to that effect must appear from the subject matter, scope and purpose of the Act. It is not enough to argue that principles concerning other statutory provisions with a protective purpose must apply analogously to s 501(2). It is one thing to conclude, as I have, that the Minister must consider the risk of harm, but it is a step removed to decide that the statute contains an implication that the Minister must evaluate the risk of harm in a particular way.
[72] The cases concerning s 501A relied on by the Minister … establish that the seriousness of an offence may, of itself, lead the Minister to conclude that a visa should be cancelled in the national interest. I consider that the seriousness of an offence or other relevant past conduct may also lead the Minister to conclude that a visa should be cancelled in the discretion under s 501(2) without evaluating the likelihood that the visa holder will reoffend or engage in harmful conduct. It is implicit in s 501 that Parliament considers that a person who does not pass the character test poses a risk of harm of some kind, although that does not lead to a presumption that the discretion should be exercised in a particular way. In a particular case, however, the Minister may take the view the seriousness of the offence or conduct means that any risk is intolerable. It follows that in exercising the discretion in s 501(2), the Minister is not bound to engage in an evaluation of the likelihood of a person engaging in future conduct which may cause harm.
Justice Jessup, however, dissented. In his Honour's view, Mortimer J had "misstated the law". In expressing his reasons for disagreeing with the conclusion of her Honour, Jessup J referred to her Honour's reasons and her reference to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 and concluded:
[7] In my respectful view, the judgment in Tanielu misstated the law and should not be followed. In Peko-Wallsend, Mason J did not say that, where the discretion to be exercised was unconfined by the terms of the statute, it was in all cases imperative for the decision-maker to identify, from the subject matter, scope and purpose of the relevant provision, the considerations that were, implicitly, to be taken into account. What his Honour said, in the concluding sentence in the passage set out in para 4 above, was that, where the discretion was unconfined in this way, the court would not find that the decision-maker was bound to take a particular matter into account unless an implication to that effect was to be found in the subject matter, scope and purpose of the relevant statute. That is to say, only if it were apparent from the subject matter, scope and purpose of the Act that the power in question ought not to be exercised without taking a particular consideration into account would a court hold that the power could not be so exercised.
[8] The effect of the judgment in Tanielu, in my respectful view, was to turn this negative stipulation into a positive requirement, applicable in all cases in which there was no explicit setting out of the considerations which were required to be taken into account as part of the valid exercise of a discretionary power which is, in terms, unconfined. This does not represent the law as articulated by Mason J in Peko-Wallsend.
[9] Moreover, it is not as though s 501(2) of the Act is utterly devoid of indications as to the considerations which ought to inform the exercise of the discretion for which it provides, such as, for example, a provision which said no more than that the Minister was empowered to cancel any visa at any time. The subsection is within a category of provisions, regularly found in legislation, which specify preconditions to the taking of an executive step, and thereby provide the context in which the discretion arises. For example, a power given to a local council to remove for disposal an unregistered vehicle left standing by the kerb for more than a month could be exercised on no other ground than that there was such a vehicle by the kerb. Likewise, in my view, the power to cancel a visa under s 501(2) of the Act might validly be exercised upon the Minister taking into account no consideration other than that set out in the subsection, namely, that, in circumstances where the Minister reasonably suspected that the person did not pass the character test, the person did not satisfy the Minister that he or she did pass that test.
[10] This is not to hold that, in addition to the visa holder's failure to satisfy the Minister that he or she did pass the character test, the discretion for which s 501(2) provides is not a real or useful one. There must be a decision made in the particular case. There may always be particular circumstances to which the Minister might validly give attention before exercising the power. But it is to hold that the power may be validly exercised in a situation in which, having turned his or her mind to the facts of the case, the Minister chooses not to take into account any consideration other than the fact that the visa holder does not pass the character test. There is, in my view, nothing in the subsection, or elsewhere in the Act, that has the effect that the power may not be validly exercised unless the Minister takes account of the risk posed to the Australian community of the visa remaining uncancelled.
Counsel for Mr Berryman submitted, obviously enough, that the conclusion of Mortimer J and the majority in Moana bound the Court as presently constituted - the risk of harm to the Australian community was, it was submitted, a mandatory consideration that had to be taken into account if the discretion conferred by s 501 was to be lawfully exercised.
More recently, a differently constituted Full Court left open the question as to whether the risk of harm was a mandatorily relevant consideration: Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83. The Full Court there referred to "unresolved tension between the views of North and Rangiah JJ in Moana and observations of Kiefel and Bennett JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256, (2004) 139 FCR 505": [2015] FCAFC 83 at [36]. In Huynh, Kiefel and Bennett JJ referred to some of the authorities and concluded:
[74] A reference to those matters confirms the breadth of the Minister's discretion. The object of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens: s 4(1). To advance that object provision is made for the removal or deportation from Australia of non-citizens whose presence is not permitted by the Act: s 4(4). If the Minister were able, consistent with the object of the Act, to consider a matter as broad as the national interest, in determining whether a person ought to be permitted to remain in Australia, it does not seem possible to imply some obligation on the Minister's part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed. By way of illustration, the Minister may consider that the national interest requires that the commission of a particular type of offence will inevitably result in the cancellation of a visa, where there has been a sentence to imprisonment for the requisite term. To construe the section as requiring the Minister to consider factors such as the level of involvement of the visa holder in the offences would cut across that broad discretion. It follows in our view that the obligation of which his Honour the primary judge spoke cannot be read into s 501.
Kiefel and Bennett JJ further concluded:
[76] The remarks of the sentencing judge and of the Court of Criminal Appeal as to the extent of the respondent's involvement in the drug offence in question only become necessary to the Minister's consideration if there is some obligation, on the Minister's part, to take that matter into account in each case. No such obligation arises from s 501. Nor, in our view, can it be said that there is some general obligation to take account of what is said by the Courts on these occasions. It is for the Minister to determine, in the exercise of the discretion given by the section, whether they assume importance in a particular case. It follows in our view that neither the topic referred to by his Honour the primary judge nor what the Courts had to say about it can be regarded as relevant considerations in an administrative law sense.
Justice Wilcox dissented. The "tension" arises (at least in part) from the necessity to take into account the risk to the Australian community (Moana) but the absence of any necessity to take into account, when assessing that risk, comments made by sentencing judges when sentencing the very person who poses the "risk" to be assessed (Huynh).
21 Where the risk of harm is to be taken into account, however, there has been some attention given to what the Minister must in fact do if he is properly to take that risk into account. It is sufficient to refer to two aspects of that decision-making process.
22 First, according to Mortimer J in Tanielu, it is not sufficient for the Minister simply to "speculate" about the prospects of a person re-offending. Her Honour expressed this conclusion as follows:
[110] In the penultimate paragraph of his reasons, the Minister expresses the conclusion to which I have referred about the risk of the applicant reoffending against children. This is in the context of having recited the factors which weigh in the applicant's favour: his close family ties to Australia, the impact his removal will have on his wife especially in light of her health conditions, the best interests of his four children. The Minister expresses his conclusion in the language of the Direction - namely, that the risk is unacceptable, and protection of the Australian community has outweighed any countervailing considerations. It is notable that the Minister refers to the "potential risk" and says "should" the applicant reoffend. That is not the language of a decision-maker who has for himself assessed the likelihood of reoffending and reached a conclusion about it. It is the language of a decision-maker who is, at best, speculating about whether a person might reoffend. That is not the task in assessing risk of harm to the Australian community. The task is more concrete than that. It is rooted in an assessment of the characteristics of the particular applicant - not only his or her previous offences, but all aspects of his or her history, and the "dynamic factors" to which I have referred. Consideration of those factors must then be combined with consideration of what kind of offences the applicant might commit in the future - bearing in mind this may or may not be the kind of offences an applicant has committed in the past - with some evidentiary basis being disclosed for that consideration.
Each case must obviously depend upon the particular facts and circumstances presented for resolution. And each statement of reasons must be read by reference, inter alia, to the facts and issues posed for the Minister's consideration.
23 Subsequent decisions, it may be noted, have distinguished Tanielu upon the basis of the reasons provided in those cases coming before the Court. His Honour Justice Perram, it may thus be noted, distinguished the reasons for decision in Tanielu and the reasons given by the Minister in Fraser v Minister for Immigration and Border Protection [2014] FCA 1333. In distinguishing Tanielu, Perram J there concluded that in Tanielu "the Minister reasoned to his conclusion that there was a risk of re-offending more or less solely by reason of the fact that Mr Tanielu had a criminal record": [2014] FCA 1333 at [27]. By way of contrast, in Fraser, Perram J concluded that a "number of matters indicate that the Minister was focussed on what might happen in the future…". Similarly, Tracey J in Roesner v Minister for Immigration and Border Protection [2015] FCA 68 also reviewed the reasons there provided by the Minister for cancelling Mr Roesner's visa pursuant to s 501(2) in circumstances where Mr Roesner had murdered his wife with a hammer. His Honour there concluded that "even if the Minister was bound to make an assessment of the risk of the applicant reoffending, he had done so": [2015] FCA 68 at [21].
24 Care must always be taken to ensure that reasons for an administrative decision, including reasons for an adverse exercise of the discretionary power conferred by s 501 of the Migration Act, are read and construed in a common-sense and balanced manner: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 to 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. See also: Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 at [47] per Flick, Griffiths and Perry JJ. And particular care must also be taken not to apply uncritically any form of words used by a Minister in providing his reasons for decision in different cases. No course should be encouraged whereby Ministers are encouraged to use any particular form of words in their statement of reasons simply because that form of words has received "approval" in previous decisions which have come under judicial scrutiny. Ministers should only be encouraged to express their reasons for decision in a form of words which they individually consider expresses their own reasons for that particular decision. Counsel for Mr Berryman quite properly shunned any course whereby the Minister could provide "formulaic" reasons for decisions simply because that formula has previously survived judicial scrutiny.
25 Second, the task of assessing risk is a "fundamentally forward, rather than backward, looking" exercise: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38, (2014) 220 FCR 1 at 40 to 41. Buchanan J there relevantly observed:
[192] If the Minister's decision was to avoid the charge that he was intent on some form of punishment (normally the preserve of the courts) then his assessment of whether the applicant should be granted a visa should also have been directed to some assessment of the consequences for the Australian community if the applicant was granted a visa. Normally, there should be an attempt to assess the likelihood of similar, or other, criminal conduct of the kind which had aroused the Minister's displeasure and provoked the censorious conclusion that the applicant had demonstrated a fundamental disrespect for Australian laws, standards and authorities. That is because the discretion to be exercised under s 501 is fundamentally forward, rather than backward, looking. It concerns the future, not the past.