Black v Minister for Immigration and Citizenship

Federal Court of Australia (Full Court)|2007-12-04|Before: Besanko J, Dowsett JJ

INTRODUCTION 1 The appellant was born in the United Kingdom on 21 March 1940 and came to Australia from Scotland in 1955. On 1 September 1994, by operation of law, the appellant obtained a Transitional (Permanent) Visa Class BF. On 20 February 2007 the respondent (the "Minister") cancelled that visa. The appellant applied pursuant to s 476A of the Migration Act 1958 (Cth) (the "Act") for constitutional writs setting aside that decision and other incidental relief. On 17 August 2007 Besanko J dismissed his application. This is an appeal from his Honour's decision. 2 The Minister's decision was taken pursuant to s 501 of the Act. Section 501(2) provides: '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.' 3 Subsection 501(6) provides: '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)); …' 4 Subsection 501(7) provides: 'For the purposes of the character test a person has a substantial criminal record if: (a) … (b) … (c) the person has been sentenced to a term of imprisonment of twelve months or more; …'

THE OFFENCES 5 In 1983 the appellant was convicted of two offences of indecent assault and sentenced to twelve months' imprisonment in relation to each offence. The sentences were to be served concurrently. They were suspended upon the appellant entering into a bond to be of good behaviour for two years. On 10 December 2002 the appellant committed two offences of indecent assault on a person under the age of twelve years and two offences of unlawful sexual intercourse with a person under that age. On 2 July 2003, in the District Court of South Australia, the appellant was convicted of those offences and sentenced to imprisonment for a period of five years and six months, commencing on 20 February 2003 with a non-parole period of three years. He was released on parole on 19 February 2006.

THE MINISTER'S DECISION 6 On 7 August 2006 an officer of the Department of Immigration and Multicultural Affairs (the "Department") informed the appellant by letter that consideration was being given to the cancellation of his visa pursuant to subs 501(2) of the Act. The writer explained the import of subs 501(2), provided a copy and identified the appellant's 2003 convictions as a possible basis for the Minister proceeding pursuant to s 501. The writer then stated: 'If the Minister or a delegate makes a determination that he or she reasonably suspects that you do not pass the character test, and you fail to satisfy him or her that you do pass the character test, the Minister or the delegate will then consider whether your visa should be cancelled.' 7 Under the heading 'Considerations to be taken into account if decision is made by a delegate' the writer stated that: 'In considering whether to exercise the power under s 501(2) to cancel your visa, a delegate will be required to follow directions given by the Minister under s 499 of the Migration Act. Those directions are contained in Direction No.21 ("Direction under Section 499 - Visa Refusal and Cancellation under Section 501 Migration Act 1958"). I have attached a copy of Direction No 21 for your information.' 8 The next paragraph was headed 'Considerations to be taken in account if decision is made by the Minister'. It stated: 'If the decision in relation to cancellation of your visa is made by the Minister, although she may decide to have regard to the matters discussed in Minister's Direction No 21, she is not required to give consideration to those matters.' 9 We will return to Minister's Direction No 21 (the "Direction") at a later stage. The writer then invited the appellant to provide information and comments as to whether he failed the character test and as to whether his visa should be cancelled. The letter identified certain documentary material to which the Minister might have regard. 10 The appellant made submissions. He asserted that he had a good work history and, apart from the offences to which we have referred, had no criminal convictions or any record involving driving offences. He asserted that he was complying with his parole conditions, that he understood the gravity of his previous misconduct and that he was undertaking appropriate treatment. He also said: 'At my age I would find it very difficult to re-establish in another country and I would not be able to receive the support and assistance from everyone concerned. Should I be deported I have no one to blame but myself, I have brought this upon myself and I am prepared to face the consequences.' 11 On 4 October 2006, an officer of the Department advised him by letter that: 'The department holds a report from the SA Parole Board that provides information in relation to your risk of recidivism, your rehabilitation and your ongoing risk to the community. This information is non-disclosable, as defined at section 5(1) of the Act but you are invited to comment on any issues you believe to be relevant to these factors.' 12 The appellant responded: 'In regards to the report from the Parole Board of S.A. of which it is non-disclosable and of which you hold, I would have no argument with the contents of that report of which I would accept as being a true and accurate account of my present rehabilitation and risk of recidivism and ongoing risk to the community.' 13 On 20 February 2007 the Minister decided to cancel the appellant's visa, giving written reasons for the decision. On 28 February 2007 the appellant was advised of the decision and provided with a copy of those reasons. In the reasons the Minister recorded his conclusion that the appellant did not pass the character test. He then went on to consider whether or not he should exercise his discretion to cancel the visa. He recorded that whilst he was not bound by the Direction, '… following my usual practice I proceeded in accordance with the Direction. I determined whether each of the relevant consideration weighs in favour or against exercising my discretion to cancel [the appellant's] visa under section 501(2).'

THE DIRECTION 14 At this stage, it is convenient to outline the content of the Direction. Part 1 deals with the character test, and Pt 2 deals with exercise of the discretion to cancel the visa. Only Pt 2 is presently relevant. Paragraphs 2.2 and 2.3 are as follows: '2.2 The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraphs 2.3-2.16 and other considerations are set out at paragraphs 2.17-2.24. Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations. Primary Considerations 2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations: (a) the protection of the Australian community, and members of the community; (b) the expectations of the Australian community; and (c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.' 15 The Direction then discusses each of the three primary considerations. Concerning protection of the Australian community it states at paras 2.4 and 2.5: '2.4 The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community. The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially at risk. This is of particular importance when the offences in question are in relation to drugs and crimes of violence. 2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include: (a) the seriousness and nature of the conduct; (b) the likelihood that the conduct may be repeated (including any risk of recidivism); and (c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).' 16 At para 2.6 the Direction discusses considerations relating to the seriousness and nature of the relevant conduct. In particular at subpara (d) it states that: '… sexual assaults are particularly repugnant to the Australian community, especially sexual assaults involving children regardless of whether there was overt violence or the threat of violence; …' 17 At subpara (m) it states that: '… due to their vulnerability as victims and potential victims, crimes against children take on a special significance, especially crimes involving inducing children to take illicit drugs, sexual assaults on children, child prostitution, violence to children, kidnapping and crimes taking advantage of children; … ' 18 At para 2.12 the Direction discusses expectations of the Australian community as follows: 'The Australian community expects non-citizens to obey Australian law while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel a visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that a person would not be granted a visa or should be removed from Australia. Decision-makers should have due regard to the Government's view in this respect.' 19 The Direction then discusses the third primary consideration, concerning the best interests of children. In para 2.13 it states: 'This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect. The best interests of any children aged 18 years or more is not a primary consideration but may be considered with other considerations under paragraph 2.17.' 20 It addresses various relevant aspects of the relationship between a parent and a child. Although this primary consideration is of particular importance in the present case it is not necessary to say any more about that discussion. Paragraph 2.17 discusses 'Other Considerations'. In paras 2.18-2.24 the relevance of Australia's international obligations is addressed. 21 It is common ground that the Minister was not bound to follow the Direction in making his decision. That he chose to follow it does not change that position. Besanko J proceeded upon the basis that jurisdictional error could not be established simply by showing a misunderstanding of the Direction. His Honour considered that it must be shown that the Minister acted outside the terms of his statutory power. We understand the appellant to accept that view.

THE MINISTER'S REASONS 22 The Minister asserted that he had given primary consideration to protection of the Australian community, taking into account the seriousness and nature of the appellant's conduct, the risk of recidivism and general deterrence. He considered the offences to be very serious and gave that consideration considerable weight. He considered that there was a moderate risk of recidivism and gave that consideration moderate weight. He considered that cancellation of the visa might possibly provide some deterrent effect. He gave that matter no weight. 23 He gave primary consideration to the expectations of the Australian community including its 'compassionate expectations'. Under this heading he balanced the seriousness of the misconduct and the community's expectation that non-citizens would obey the law, on the one hand, against the appellant's age, that he had lived and worked in Australia for a total of 51 years, that his parents were deceased and that he had a younger brother residing in South Australia, on the other. The Minister concluded that the Australian community would expect the visa to be cancelled and the appellant removed from Australia. The Minister gave this consideration moderate weight. 24 In paras 13 and 14 the Minister stated: '13. I gave primary consideration to the best interests of any children who were less than eighteen years of age and with whom [the appellant] is in a parental or other close relationship. [The appellant] has no children. 14. The information relevant to this consideration weighs in favour of cancelling [the appellant's] visa. I gave this consideration considerable weight.' 25 The Minister also considered possible disruption to the appellant and members of his family, particularly his brother. He said that there was no evidence that the brother would suffer any hardship and concluded that this information weighed in favour of cancelling the visa. The Minister gave this consideration moderate weight. 26 In paras 18, 19 and 20 the Minister recorded that he had considered all relevant matters and evidence available to him and had concluded that the seriousness of the offences outweighed all other considerations. On that basis he decided to cancel the visa.

PROCEEDINGS AT FIRST INSTANCE 27 In his original application for relief the appellant asserted that the Minister had exceeded and/or constructively failed to exercise his power under s 501(2) by: '1.1 determining that each of the considerations in [the Direction] must either weigh for or against exercising his power under the subsection, whether relevant to [the appellant's] circumstances or otherwise; 1.2 taking into account the consideration described as "the Best Interests of the Child" in [the Direction] as a factor having "considerable weight" in favour of cancelling [the appellant's] visa in circumstances where [the appellant] has no children; and 1.3 taking into account the consideration described as "other considerations" in [the Direction] as a factor having "moderate weight" in favour of cancelling [the appellant's] visa in circumstances where there was no evidence that the [appellant's] family would be disrupted.' 28 In the course of closing submissions at first instance, the appellant amended his application to add a further ground as follows: 'A breach of the rules of procedural fairness occurred in relation to the making of the decision. Particulars 2.1 [The appellant] held a legitimate expectation that any matter or issue set out as a relevant consideration under [the Direction] would be taken into account by the relevant decision maker (whether a delegate or the Respondent) in accordance with the terms of that Direction. 2.2 If [the Minister] proposed to make a decision not in accordance with [the appellant's] legitimate expectation, procedural fairness required that [the appellant] should be given notice and an adequate opportunity of presenting a case against the taking of such a course. 2.3 In the alternative to paragraph 1 above, [the Minister] proceeded in accordance with the Direction and considered the primary consideration "Best Interests of the Child" in [the Direction]. He concluded in respect of that consideration that there was no such child whose interests would detract from the weight of the facts in favour of cancellation. He gave significant weight to this conclusion. 2.4 Such a conclusion departed from, and was not in accordance with, the weight or significance to be given to the consideration in the Direction. [The Minister] did not give notice or provide an opportunity to [the appellant] to make submissions in respect of the conclusion.'

THE DECISION AT FIRST INSTANCE 29 Besanko J concluded that the Minister's reasons demonstrated a misunderstanding of that part of the Direction which dealt with the best interests of children. His Honour found that the Minister had treated the fact that the appellant had no children as weighing in favour of cancelling the visa and had given that matter considerable weight. His Honour held that on the proper construction of the Direction, the fact that the appellant had no children should have been treated as irrelevant to the decision. Besanko J also observed: 'I do not think it is possible to construe the Minister's reasons as saying no more than that the matter of the best interests of the child was irrelevant and, as this was generally a matter in favour of not cancelling the visa, the other matters in favour of cancellation were not counter-balanced by this consideration.' 30 His Honour concluded that the Minister's error did not amount to a jurisdictional error. Besanko J rejected the appellant's submission that the Minister had also misunderstood the Direction in so far as it concerns "other considerations". 31 As to the question of procedural fairness, his Honour concluded that it had not been represented to the appellant that the Minister would have regard only to matters identified in the Direction. He also rejected the submission that the appellant had been led to believe that the topic of children and the best interests of children would only be dealt with in the manner contemplated by the Direction. His Honour considered that in any event it could not be said that any practical injustice had been demonstrated. The appellant 'was afforded a full opportunity to be heard on the matters ultimately taken into account by the Minister.'

GROUNDS OF APPEAL 32 The present grounds of appeal are as follows: '1. The learned primary judge: 1.1 erred in finding that the Respondent had found that the fact that the Appellant had no children was a matter in favour of cancelling his visa, 1.2 ought to have found that the Respondent had found that the best interests of the Appellant's children was a matter in favour of cancelling the Appellant's visa, even though there were no such children; and 1.3 ought to have found that the Respondent had found that the "other considerations" set out in Ministerial Direction No 21 were matters in favour of cancelling the Appellant's visa, even though there were no such matters. 2. The learned primary judge ought to have held, on the basis of the findings in paragraph 1.2 and 1.3 above, that the Respondent had misconstrued the statute or misunderstood the purpose of the power under s.501 and thereby committed jurisdictional error. 3. In the alternative to paragraph 1 above, the learned primary judge: 3.1 erred in holding that the Respondent's misconstruction of Ministerial Direction No 21 set out at paragraph [24] of the judgment only amounted to him taking into account as a matter in favour of cancelling the Appellant's visa the fact that the Appellant had no children. 3.2 ought to have found that the misconstruction itself gave rise to the inference that the Respondent had misconstrued the statute or misunderstood the purpose of the power under s.501, and 3.3 ought to have held that the Respondent thereby committed jurisdictional error. 4. In the alternative to paragraph 1 above, the learned primary judge: 4.1 ought to have held that there was a legitimate expectation, on the basis of the material provided to the Appellant by the Respondent's officers, that the topic of children and the best interests of children would only be dealt with in the manner contemplated by Ministerial Direction No 21 and not otherwise; 4.2 erred in holding that the Appellant had not suffered any practical injustice, in that he had not been given notice or an adequate opportunity of presenting a case against the Respondent making a decision inconsistent with that expectation; and 4.3 ought to have held that the Appellant was denied procedural fairness in the making of the decision.'

JURISDICTIONAL ERROR 33 The case turns primarily upon the Minister's consideration of the interests of any children. Counsel for the appellant submitted that the Direction, in so far as it concerned that matter, raised as a consideration the best interests of any children under 18 years of age and not the mere existence of such children. Counsel submitted that the Minister, in reality, took into account, in deciding to cancel the visa, the fact that the best interest of the appellant's non-existent children would be best served by his so doing. The submission is, in effect, that the Minister took into account every consideration mentioned in the Direction, whether or not it was relevant to the appellant's application. The appellant points out that in assessing "other considerations" the Minister also addressed the fact that the appellant's brother would suffer no apparent hardship if he were deported, giving this matter moderate weight. It is submitted that this amounted to a similar misunderstanding of the Minister's role. 34 If the Minister, in fact, gave weight to the perceived best interests of non-existent children or treated the fact that the appellant's brother would not suffer hardship as a factor weighing in favour of cancellation of the visa, it might well be said that he misunderstood the nature of his function. However we do not accept that the Minister adopted such an eccentric approach. Indeed, as a matter of common sense, it is difficult to understand how any rational person could proceed in the way which the appellant attributes to the Minister. The language used in the reasons may be infelicitous, but he clearly understood that he was to consider various factors in reaching his decision. The Minister concluded that in this case, the seriousness of the offences outweighed all other considerations. It is likely that, from a very early stage in his reasoning process, he held the view that the offences were serious. However he considered all other factors which might conceivably be relevant to the question including, in particular, the possibility that the best interests of children might be relevant. Having found that there were no children there was no such consideration relevant to the process. 35 Nonetheless, the absence of any children was, in a practical sense, of considerable significance, given the circumstances of this case and the identification in the Direction of the three primary considerations. The discretion to cancel arose out of the Minister's having reason to believe that the appellant failed the character test, and his failure to satisfy the Minister that he did so. That situation, itself, arose out of the 2002 convictions and sentence. The Minister's consideration started at that point. There being no children whose interests had to be considered, the other primary considerations - protection of the Australian community and Australian community expectations were inevitably significant aspects in the process. These matters were closely related to the seriousness of the offences, although the Minister conceded that the Australian community might 'have some compassion' for the appellant in view of his age and long period of residence in this country. Exclusion of one of the three primary considerations (the best interests of children) left the matter very much dependent upon the other two, both of which inevitably reflected the seriousness of the offences and, in the Minister's view, weighed in favour of cancellation. The Minister, in referring to the weight given to the best interests of children, was recording his view that in the absence of relevant children, there was little weighing against cancellation of the visa, given the seriousness of the offences. In dealing with the question of hardship to the appellant's brother, the Minister proceeded in the same way. We see no error in this approach. 36 The appellant's argument may be influenced in a subliminal way by notions of burden and standard of proof. Those notions tend to suggest that a judicial decision-maker starts from a neutral position and only makes a decision after considering all relevant matters. In fact, it is more likely that a judicial officer will form provisional views at various points during the trial and in considering his or her decision. Similarly, an administrative decision-maker may form numerous provisional views. The Minister's reasons seem to reflect that process. It is often not easy to provide a precise description of such a thought process. It is for this reason, amongst others, that administrative decisions are not to be approached 'minutely and finely with an eye keenly attuned to the perception of error'. See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. 37 No jurisdictional error has been demonstrated, either in respect of the interests of children or in respect of hardship to the appellant's brother.

PROCEDURAL FAIRNESS 38 The appellant submitted that he had a reasonable expectation that the Minister would proceed in accordance with the Direction in dealing with the best interests of children. He submitted that the Minister departed from the Direction in treating as relevant the fact that the appellant had no children. For the reasons which we have given we do not consider that to be a correct interpretation of the Minister's reasons. That is really sufficient to dispose of this ground. However we also agree with Besanko J that it was made clear to the appellant that the decision concerning his visa might be made by the Minister and that, if so, he would not be bound by the Direction. No absence of procedural fairness has been demonstrated.

ORDERS 39 We order that:

The appeal be dismissed.
The appellant pay the respondent's costs of the appeal. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson, Sundberg and Dowsett.

Associate: Dated: 4 December 2007 Counsel for the Appellant: Mr S Ower

Solicitor for the Appellant: McDonald Steed McGrath

Solicitor for the Respondent: Australian Government Solicitor

Migration Act 1958(Cth)ss 476A, 501, 501A

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