Berryman v Minister for Immigration and Border Protection

Section 501 9 Section 501 of the Migration Act provides in relevant part as follows: Decision of Minister or delegate-natural justice applies (1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. … Character test (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)); … Substantial criminal record (7) For the purposes of the character test, a person has a substantial criminal record if: … (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; …

The 1986 and 1989 convictions 10 The power invoked by the Minister in the present case was s 501(1) of the Migration Act informed by reference to s 501(6)(a) and s 501(7)(c). 11 To fall within s 501(7)(c), the Minister relied upon two sentences imposed upon Mr Berryman in New Zealand - the first was in April 1989 when the Hamilton District Court imposed a sentence of two years' imprisonment; the second was in July 1986 when the Hamilton High Court imposed a sentence of four years' imprisonment. 12 The proposition advanced on behalf of the Minister was that it mattered not when the sentences were imposed. If a sentence to a term of imprisonment of 12 months or more had been imposed, the power conferred by s 501(1) was enlivened and it mattered not how ancient the sentence may have been. Once the power was enlivened, it was solely for the Minister to exercise the discretion conferred. The further submission advanced was that the questions of when the sentence had been imposed and the circumstances in which it had come to light could not be elevated into "mandatory considerations" which had to be taken into account lest the exercise of discretion miscarry. A review of both the Departmental Submission prepared for the Minister's consideration and his Statement of Reasons did not expose any detailed attention being given to the circumstances in which the offences first came to light. Attention only seemed to have been directed to the fact that Mr Berryman previously entered Australia on a number of occasions and had not on any of those occasions disclosed the two offences and the sentences imposed. 13 The disquiet expressed with respect to these submissions advanced on behalf of the Minister was the occasion for the referral made pursuant to r 4.12 of the Federal Court Rules. 14 But Counsel for Mr Berryman does not now seek to make anything of the stance taken by the Minister. 15 The grounds of review upon which the challenge is made to the Minister's decision are thus confined to those addressed in the Amended Originating Application as expanded upon in the Applicant's written and oral submissions.

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.

A consideration of the risk of harm & personal circumstances 26 The present proceeding before the Court may, however, be resolved without the need to comment further upon the correctness of the views of the majority in Moana or the "tension" that remains between that decision and the majority decision in Huynh. 27 Assuming both that: the risk of harm to the Australian community is a consideration which must be taken into account if the power conferred by s 501 is to be lawfully exercised; and circumstances peculiar to or personal to Mr Berryman must also be considered no error is exposed in the reasons provided by the Minister. Both matters, upon a proper construction of the Minister's reasons, were taken into account. 28 When addressing the manner in which he exercised the discretion conferred by s 501, the Minister's Statement of Reasons separately addresses the following under the heading "Relevant Considerations": Mr Berryman's past criminal conduct; the risks to the Australian community; Mr Berryman's ties to Australia; and what was in the best interests of minor children. The reasons thereafter go on to address: "Other" considerations. 29 That part of those reasons which address the "Criminal conduct" of Mr Berryman states in part as follows: 9. While I acknowledge that Mr BERRYMAN's most serious offences occurred many years ago, before he first came to Australia, and he remained conviction free until 2006, he has since then been found to have committed 11 criminal offences and has received prison sentences of up to six months. His continued offending causes me to have concern about the possibility of further offending in future, as the range of his offending encompasses serious sexual and violent matters. The reasons thereafter go on to state as follows: Risk to the Australian community 10. Should Mr BERRYMAN re-offend in a manner similar to his previous offending, a member or members of the Australian community could be placed at risk of serious physical harm and/or loss of property. 11. Mr BERRYMAN's offending in New Zealand was, by his own account, linked to drug and alcohol abuse. While that was many years ago, I note that his more recent offending in Australia has also involved illicit drugs, and I am not satisfied that this no longer an element in his life, though I have taken into account that the court which considered his most recent offending in 2010 felt that he had good prospects of rehabilitation. 12. Mr BERRYMAN has not responded to the Notice sent to him and accordingly has not expressed remorse for his past behaviour. I have noted his dishonesty in not declaring his convictions when gaining entry into Australia in the past. Had he fulfilled his obligations in this regard he may not have been able to enter and remain in Australia. 13. I accept that Mr BERRYMAN is at lower risk of offending now than he has been in the past, taking into account his apparently stable lifestyle in recent years. However his past offending and his offending since coming to Australia which, while less grave than the earlier offences, is still of concern, I find that he must still be considered to represent a significant risk to the Australian community. The Minister returns to his consideration of the "risk of harm" posed by Mr Berryman in his conclusion which states in part as follows: 22. In reaching my decision I concluded that Mr BERRYMAN continues to represent a risk of harm to the Australian community which, though lower than in the past, remains significant. I found that the protection of the Australian community outweighs such links as he may have to the Australian community and the effects of visa refusal on his stepchildren, his grandchildren and his spouse. 30 Notwithstanding the attention that had been expressly given to the risks to the Australian community posed by Mr Berryman's past criminal conduct, Counsel for Mr Berryman nevertheless submitted that no analysis of the requisite kind had in fact been undertaken. In applying the observations of Mortimer J in Tanielu [2014] FCA 673 at [110], (2014) 225 FCR at 448 to the facts of the present case, Counsel for Mr Berryman likewise contended that the Minister had given "no consideration as to the likelihood of Mr Berryman committing similar offences in the future". It was also contended that for the Minister to "note" Mr Berryman's dishonesty in failing to declare his convictions when re-entering Australia in the past "was a concern about the past, and was not forward looking in the sense of assessing the likelihood of further offending by Mr Berryman". 31 However expressed, the submission is rejected. 32 Properly construed, it is respectfully concluded that the Minister has properly undertaken an assessment as to the risk posed to the Australian community by Mr Berryman. His reasons expressly set forth Mr Berryman's conviction of "a serious sexual offence and another serious offence of violence" and "other offences in New Zealand and Australia, including some other violence and several matters of dishonesty". Those reasons also attempt to weigh-up or assess the level of risk now posed by Mr Berryman and the risk to the Australian community should he re-offend. Although the Minister in his present Statement of Reasons also employs the term "should" - a term emphasised by Mortimer J in Tanielu and emphasised by Counsel for Mr Berryman - it is respectfully concluded that the Minister has undertaken a more "concrete" assessment and concluded that Mr Berryman "must still be considered to represent a significant risk to the Australian community". The task undertaken is, contrary to the submission advanced on his behalf, "forward looking". 33 The more particular submissions advanced on behalf of Mr Berryman are, with respect, an impermissible attempt to canvass the merits of the decision reached. There can be, for example, no criticism of the Minister having regard to past conduct - by its very nature, it is the past criminal conduct which has occasioned the adverse exercise of the discretion conferred by s 501. It was thus not irrelevant for the Minister to have regard to - or "note" - Mr Berryman's past "dishonesty". In doing so, however, the Minister was also "looking forward". The Minister was expressly "looking forward" when assessing the risk that Mr Berryman may "re-offend" and expressly reaching a decision by reference to his concern that "Mr Berryman continues to represent a risk of harm …". 34 It would be but a pedantic - or at least an unduly narrow - construction of the Minister's Statement of Reasons to conclude that the risk of harm to the Australian community has not been addressed in making the decision. The Minister's reasons record his finding that Mr Berryman "represent[s] a significant risk to the Australian community" and his conclusion that Mr Berryman "continues to represent a risk of harm to the Australian community" which "remains significant". It would also be an impermissible construction of the Minister's reasons to conclude that circumstances peculiar to Mr Berryman, including the comments made upon sentencing were not taken into account. Those were matters expressly addressed in the Departmental Submission which was taken into account before the Minister made his decision. 35 There is a "logical pathway" (cf. FTZK v Minister for Immigration and Border Protection [2014] HCA 26 at [6] and [13], (2014) 310 ALR 1 at 5 and 7 per French CJ and Gageler J) to the conclusion ultimately reached by the Minister. Even although an administrative decision need not be "irrational or bizarre" in order to be set aside as "unreasonable" (cf. Minister for Immigration and Citizenship v Li [2013] HCA 18 at [68], (2013) 249 CLR 332 at 364 per Hayne, Kiefel and Bell JJ), on no view could the Minister's decision or his reasons in the present case be considered "unreasonable".

CONCLUSIONS 36 None of the grounds of review establish any error. 37 The Amended Originating Application should be dismissed. 38 There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1. The Amended Originating Application as filed on 3 June 2015 is dismissed.
2. The Applicant is to pay the costs of the Respondent. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.